N.M. Admin. Code § 9.1.1.7

Current through Register Vol. 35, No. 21, November 5, 2024

Section 9.1.1.7 - DEFINITIONS

As used in these rules incorporates the definitions of 28-1-2 NMSA 1978 and:

A."Act or Acts" means the Human Rights Act, Sections 28-1-1 to 28-1-7, 28-1-9 to 28-1-14 NMSA 1978, The Criminal Offender Employment Act, 28-2- 1 to 28-2-6 NMSA 1978, The Fair Pay for Women Act 28-23-1 to 28-23-6, 50-16-1 to 50-16-4 NMSA 1978, The Lynn and Erin Compassionate Use Act, 26-2B-9 NMSA 1978 and all subsequent amendments and provisions.

B."Applicant for employment" means a person applying or attempting to apply for a position as an employee.

C."Bureau" means the human rights bureau of the labor relations division of the New Mexico department of workforce solutions.

D."Chairperson" and "vice chairperson":

(1)"Chairperson" means a member of the commission designated by the governor to serve as chair.

(2)"Vice chairperson" means a member of the commission designated by the commission to preside in the absence or incapacity of the chairperson.

E."Commission" means the New Mexico human rights commission.

F."Commissioner" means one of the members appointed by the governor to serve on the New Mexico human rights commission.

G."Complainant" or "claimant" means any person who claims to be aggrieved by an unlawful discriminatory practice and who has filed a complaint with the human rights bureau within 300 calendar days after the alleged unlawful discriminatory act was committed.

H."Complaint" or "charge" means a charge of discrimination signed by the complainant on a human rights bureau charge of discrimination form, on an equal employment opportunity commission (EEOC) form 5 or on such other form as may be deemed acceptable to the human rights bureau.

I."Determination" means a formal decision made by the division director, relating to a complaint filed with the human rights bureau of the labor relations division of the New Mexico department of workforce solutions.

J."Disabled person" means any person who has a physical or mental disability as defined in these rules as "physical or mental disability" as used in Subsection O of Section 28-1-2 NMSA 1978, as amended.

K."Division" means the labor relations division of the New Mexico department of workforce solutions.

L."Director" means the director of the human rights bureau of the labor relations division, or other bureau leadership designated by the director to carry out the mission of the bureau.

M."Good cause" means a substantial reason, one that affords a legal excuse, or a legally sufficient ground or reason. The bureau may consider any relevant factors to determine if good cause exists.

N."Hearing clerk" means the person designated by the bureau to maintain the official record of the hearing proceedings.

O."Hearing officer" means the person conducting a hearing of a matter brought before the bureau; a hearing officer may be:

(1) a member of the commission designated by the chairperson to act as the hearing officer;

(2) a hearing officer employed by the human rights bureau of the New Mexico department of workforce solutions. The hearing officer may also be referred to as an Administrative Law Judge (ALJ); or

(3) an employee of the labor relations division or workforce solutions department designated by the director to act as the hearing officer.

P."Labor organization" means any organization which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employment.

Q."Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working, as provided in Subsection P of Section 28-1-2 NMSA 1978, as amended, or as currently defined by regulations governing interpretation of the Americans with Disabilities Act of 1990, as amended.

R."Physical or mental disability" means a physical or mental impairment that substantially limits one or more of an individual's major life activities.

(1) An individual is also considered to be physically or mentally disabled, if the individual:

(a) has a record of a physical or mental disability; or

(b) is regarded as having a physical or mental disability.

(2)"Has a record of such a disability" means has a history or recorded classification of having a mental or physical impairment that substantially limits one or more major life activities.

(3)"Is regarded as having a disability" means:

(a) having a physical or mental impairment that does not substantially limit major life activities, but being treated by a respondent as having such a limitation;

(b) having a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairments; or

(c) having none of the impairments described above, but being treated by a respondent as having such an impairment.

S."Physical or mental impairment" is defined to include, but is not limited to, any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; endocrine; or any mental or psychological disorder, such as development disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

T."Probable cause" and "no probable cause":

(1)"Probable cause" means that the allegations in the complaint are supported by evidence providing reasonable grounds to believe an unlawful discriminatory practice occurred, pursuant to the act.

(2)"No probable cause" means that the allegations in the complaint are not supported by evidence providing reasonable grounds to believe an unlawful discriminatory practice occurred, pursuant to the act.

U."Protected groups" for complaint purposes are all of the groups identified under the Acts as defined in Subsection A of this section.

V."Qualified disabled person with respect to employment" means a disabled person who, with reasonable accommodation, can perform the essential functions of the job in question and shall not, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in employment under any program or activity.

W."Qualified disabled person with respect to housing, accommodation, credit and acquisition or maintenance of particular real property" means a disabled person whose disability does not limit that person's ability to fulfill the obligations of occupancy, tenancy, ownership or credit responsibilities.

X."Reasonable accommodation" means, for employment purposes, such modifications or adaptations of the work environment, work schedule, work rules or job responsibilities, and reached through good faith efforts to explore less restrictive or less expensive alternatives to enable an employee to perform the essential functions of the job and which do not impose an undue hardship on the employer.

Y."Respondent" means the person, company, union, association, organization, agency or any other enterprise named in a complaint as having allegedly engaged in an unlawful discriminatory practice.

Z."Serious medical condition" means a serious health-related impairment other than a disability, which substantially limits one or more of an individual's major life activities, as "major life activities" is defined within these rules, and which is verifiable by medical diagnosis.

(1) An individual is also considered to have a serious medical condition, if that individual:

(a) has a record of a serious health-related impairment; or

(b) is regarded as having a serious health-related impairment.

(2)"Has a record of serious health-related impairment" means has a history or recorded classification of having a serious medical condition that substantially limits one or more major life activities.

(3)"Is regarded as having a serious health-related impairment" means:

(a) having a serious medical condition that does not substantially limit major life activities, but being treated by a respondent as having such a limitation;

(b) having a serious medical condition that substantially limits major life activities only as a result of the attitudes of others toward such impairments; or

(c) having none of the impairments described above, but being treated by a respondent as having such an impairment.

(4) The term "serious medical condition" is intended to apply to a serious health-related impairment that requires protection against discrimination due to the severity and duration of the impairment or due to having a record of such impairment.

AA."Sex discrimination" is defined to include, but is not limited to, the following:

(1)"Sexual harassment" means unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature, that can include offensive remarks about a person's sex, gender, gender identity or sexual orientation.

(2)"Pregnancy, childbirth, or related medical condition" means, for example, current, past, potential or intended pregnancy issues related to reproductive risk, choosing to have or not have an abortion, use of contraception, fertility treatment, or medical conditions related to pregnancy or childbirth including chestfeeding or lactation.

BB."Unlawful discriminatory practices" means those unlawful practices and conduct specified under the Acts as defined in Subsection A of this section.

N.M. Admin. Code § 9.1.1.7

9/1/98; Recompiled 10/01/01, Adopted by New Mexico Register, Volume XXVIII, Issue 21, November 14, 2017, eff. 11/14/2017, Adopted by New Mexico Register, Volume XXX, Issue 24, December 31, 2019, eff. 1/1/2020, Amended by New Mexico Register, Volume XXXII, Issue 01, January 12, 2021, eff. 1/12/2021, Amended by New Mexico Register, Volume XXXIV, Issue 19, October 10, 2023, eff. 10/10/2023