The New Mexico Human Rights Act prohibits discrimination in employment based on age (NM Stat. Sec. 28-1-1 et seq.). The Act applies to employers with four or more employees. Under the Act, it is unlawful for an employer to:
• Refuse to hire, discharge, promote or demote, or otherwise discriminate with respect to an individual's compensation or terms and conditions of employment based on age.
• Willfully obstruct or prevent any person from complying with the Act, or to resist, prevent, impede, or interfere with the state human rights commission.
• Aid, abet, incite, compel, or coerce any unlawful discriminatory practice.
• Threaten or retaliate against any individual who has made a complaint or assisted in an investigation, proceeding, or hearing under the state law.
The Act does not define the protected age class. However, the New Mexico Supreme Court has ruled that, in employment discrimination cases, the Act's age discrimination provisions apply to individuals who are at least 40 years of age (Cates v. Regents of the N.M. Inst. of Mining & Tech., 124 N.M. 633 (1998)).
It is permissible to hire an individual based on age because of a BFOQ (e.g., hiring actors to portray individuals of a certain age, or hiring persons to advertise goods designed for a specific age group). These situations are rare, however, and employers should be cautious in relying on such a rationale when making employment decisions that have a disproportionate impact on persons of a particular age group.