A. The respondent to a complaint made pursuant to Section 28-1-10 NMSA 1978 may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The complainant shall be present at the hearing and may be represented by counsel. Each party shall have the right to amend his complaint or answer.

B. A panel of three members of the commission designated by the chairman shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. However, no commissioner who has filed a complaint may sit on the panel hearing his complaint. Hearings also may be conducted by a hearing officer employed by the human rights division of the labor department or, if the hearing officer is unavailable, one member of the commission may be designated by the chairman to act as a hearing officer. A hearing officer shall have the same powers and duties as a commissioner as set forth in Paragraph (2) of Subsection A of Section 28-1-4 NMSA 1978.

C. The complainant or his representative shall present to the commission or the hearing officer the case supporting the complaint. No evidence concerning prior attempts at conciliation shall be received. The director shall not participate in the hearing, except as a witness.

D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed, provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and hearing officer may administer oaths.

E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the chairman. No commissioner may sit on the panel reviewing the hearing officer's report issued in connection with a complaint filed by the commissioner. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the respondent has engaged in a discriminatory practice, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon each party of record and his attorney, if any, a written copy of the order by certified mail to the party's address of record. All parties shall be deemed to have been served on the tenth day following the mailing. As part of its order, the commission may require the respondent to pay actual damages to the complainant and to pay reasonable attorneys' fees, if the complainant was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.

F. If the commission finds from the evidence that the respondent has not engaged in a discriminatory practice, it shall make written findings of fact and serve the complainant and respondent with a copy of the findings of fact and with an order dismissing the complaint.

History: 1953 Comp., § 4-33-10, enacted by Laws 1969, ch. 196, § 10; 1975, ch. 248, § 1; 1983, ch. 241, § 4; 1987, ch. 342, § 22; 1995, ch. 125, § 3.

The 1995 amendment, effective June 16, 1995, substituted "must" for "shall" in Subsection A; added the third and fourth sentences in Subsection B; in Subsection C, substituted "The complainant or his representative" for "A member of the division staff, the attorney general or special counsel" and inserted "or the hearing officer"; in Subsection D, inserted "and the hearing officer" in the first and last sentences; and in Subsection E, added the first through the fourth and the sixth sentences, inserted "presented at any hearing held pursuant to this section" in the fifth sentence, and made a minor stylistic change in the last sentence.

Proceeding not stayed by filing federal suit. — The filing of an age discrimination complaint in federal court does not stay a proceeding before the commission to redress the same alleged unlawful discriminatory practice. Mares v. Santa Fe Pub. Schs., 1987-NMSC-074, 106 N.M. 354, 743 P.2d 110.

"Actual damages". — The law in New Mexico is unsettled as to whether the provision for "actual damages," Subsection E, encompasses damages for emotional harm. Roybal v. City of Albuquerque, 653 F. Supp. 102 (D.N.M. 1986).

Law reviews. — For article, "Age Discrimination in Employment: A Comparison of the Federal and State Laws and Remedies in New Mexico," see 7 N.M. L. Rev. 51 (1976-77).

For article, "Selecting an Analogous State Limitations Statute in Reconstruction Civil Rights Claims: The Tenth Circuit's Resolution," see 15 N.M.L. Rev. 11 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Civil Rights § 261.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 435.

Nature and burden of proof in Title VII action alleging favoritism in promotion or job assignment due to sexual or romantic relationship between supervisor and another, 86 A.L.R. Fed. 230.

Evidence of discriminatory effect alone as sufficient to prove, or to establish prima facie case of, violation of Fair Housing Act (42 USCS §§ 3601 et seq.), 100 A.L.R. Fed. 97.

Availability of nominal damages in action under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.), 143 A.L.R. Fed. 269.

Actions under Fair Housing Act (42 USCS § 3601 et seq.), based on sexual harassment or creation of hostile environment, 144 A.L.R. Fed. 595.

Availability of damages under § 504 of the Rehabilitation Act (29 USCA § 794) in actions against persons or entities other than federal government or agencies thereof, 145 A.L.R. Fed. 353.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 USCA § 1981a; 42 USCA §§ 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 USCA § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

14 C.J.S. Civil Rights, §§ 454 to 459.