New Mexico courts apply a federal burden-shifting test to decide employment retaliation claims brought under the New Mexico Human Rights Act (NMHRA). In New Mexico courts’ application of this test, it is unclear whether the employee has to initially show whether the protected activity she engaged in—such as filing a discrimination complaint—was the “but-for” cause of the adverse employment action against her, or if it is sufficient for her to show that the protected activity was one motivating factor—among other potentially lawful or non-discriminatory factors—that contributed to the employer’s retaliatory acts against her. In light of the recent United States Supreme Court case that requires a but-for causation standard for employment retaliation claims brought under federal law, it is critical that New Mexico courts clarify the causation standard that plaintiffs must satisfy in employment retaliation claims brought under the NMHRA. This Comment argues that New Mexico courts should adopt a motivating factor causation standard in NMHRA retaliation claims. A motivating factor causation standard best comports with the purpose of the federal burden-shifting framework; New Mexico caselaw on state-based discrimination and retaliation claims; the statutory structure of the NMHRA; and the ultimate anti-discriminatory purpose of the NMHRA.
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Evaluating Causation in NMHRA Retaliation Claims After Nassar: Why New Mexico Courts Should Adopt a Motivating Factor Causation Standard,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol51/iss2/8