After a Complaint Is Filed (Brief Description)
After the discrimination charge is taken, the complainant and the respondent are given the option to participate in a Mediation session, wherein an attempt at a mutually agreed upon settlement is made prior to an investigation. This agreement is a "no-fault" agreement, in which terms and conditions of a settlement are negotiated between the complainant and the respondent, and in which the respondent does not admit violations of the law and the complainant agrees not to file suit against the respondent based on the same issues. If either party chooses not to participate or the parties cannot agree to a resolution, an investigation is conducted.
Detailed Explanation of Charge Filing and Investigation Process
1) Filing A Charge Of Discrimination With The New Mexico Human Rights Division
- A complainant or charging party is one who believes she/he has had an employment, public accommodation, housing or credit harm based on a protected status (i.e. race, age, national origin, color, religion, sex, physical or mental handicap, serious medical condition, spousal affiliation, sexual orientation, gender identity). The individual must contact and file a complaint with an HRB intake officer within 300 days of the employment harm. The contact can be made in person, via telephone, by mail, or email through this website.
- Based on the information you’ve provided the investigator will draft an affidavit and a charge of discrimination and mail them to you. If you are represented by an attorney, your attorney must complete the forms.
- When you receive these documents read the letter, review the documents, sign them, date them and mail them back to the investigator whose name appears at the end of the letter. It is not a filed charge until the signed forms are received by the bureau.
- Once the investigator has received the signed and dated documents it will be an official charge of discrimination that can be investigated.
- A copy of the charge of discrimination and an invitation to mediation will be sent to the Respondent (employer) if your case has been selected for mediation.
- The purpose of the mediation is to try and resolve the case.
- We do encourage that all cases go through mediation initially as a means of resolving the charge.
- If both parties agree to the mediation our mediator will contact you to schedule a mediation in the county where you were employed and the mediator will meet with both parties.
- If the mediation is successful then the case will be closed and both parties will sign a settlement agreement.
2) Investigation Process
- If your case is not chosen for mediation, one party or the other is not willing to attend the mediation or the mediation does not resolve the charge of discrimination, the mediator will then return the case to the investigation unit where it will be assigned to an investigator.
- The investigator will send the employer a questionnaire asking for their position statement and request information and documentation regarding your allegations.
- The employer has 30 days in which they can respond.
- The employer can request extensions for up to 20 days to submit their response.
- After we receive the information from the employer the investigator will provide their position statement and send that to you.
- You will also have 30 days in which to offer your rebuttal to their position statement.
- You can also request extensions of up to 20 days.
- When we receive your rebuttal the investigator will evaluate the information in the file and may interview witnesses and/or conduct an on-site investigation if it is necessary.
- Once the investigation is complete the investigator will review and summarize the information and forward the case file to the Division Director.
3) Determination Process
- The Division Director will review the case and make a determination of Probable Cause or No Probable Cause.
- Probable Cause means that the there is enough evidence to show that the law may have been broken.
- If you receive a Probable Cause determination from the Director both parties will be invited to conciliate the case.
- Conciliation, like mediation, is an opportunity for the parties to resolve the matter themselves with the help of a mediator without having to go to a Commission Hearing or to Court.
- If conciliation does not resolve the matter, then your case will be scheduled to be heard by the New Mexico Human Rights Commission.
- At this hearing you will have to prove your allegations of discrimination. The Commission does not see or review the investigative file.
- You can also request a Hearing Waiver within 60 days, which would allow you to file your case in State District or Federal District Court, rather than go before the Commission.
- No Probable Cause means the Director does not believe there was sufficient evidence to show the law was broken.
- If you get a No Probable Cause determination from the Director and your case is only filed with the New Mexico Human Rights Division, then you can file an appeal in State District Court in the county where the alleged discrimination occurred within 30 days from the date of service of the Determination.
- If your case is dual filed with the EEOC, then you can request a substantial weight review from the EEOC within 90 days of service of your Determination, and you can file an appeal with State District Court or Federal District Court, or you can also decide this is the end of your charge and not pursue it any further. Requesting a substantial weight review does not delay your time to file an appeal in court. You must still file within 90 days of service of the determination. IT IS IMPORTANT TO NOTE THAT THE HUMAN RIGHTS DIVISION DOES NOT REPRESENT EITHER PARTY IN THIS PROCESS. OUR FUNCTION IS TO DETERMINE WHETHER THE LAW MAY HAVE BEEN BROKEN OR NOT. BE AWARE, THIS INVESTIGATION CAN LAST AS LONG AS ONE YEAR.