Can My Employer Discriminate Against Me Because I’m Separated or Divorced?

The New Jersey Law Against Discrimination (the “LAD”) has long prohibited employers from discriminating against workers based on their “marital status” as “single” or “married” individuals. But what does that mean for workers who are separated or divorced?

The New Jersey Supreme Court recently answered that question in the case of Smith v. Millville Rescue Squad, (074685) (A-19-14), ruling that the LAD’s anti-discrimination protections extend to employees “who have declared that they will marry, have separated from a spouse, have initiated divorce proceedings, or have obtained a divorce.” In other words, it’s now clear that under New Jersey law, your boss can’t fire you or otherwise take adverse employment action against you due to the fact that you and your spouse have called it quits or are in the process of doing so.

The plaintiff in the Smith case was a long-time employee for a New Jersey township Rescue Squad.  He started as a paramedic and, over the course of seventeen years, rose to the Director of Operations.  The plaintiff’s wife, mother-in-law and sisters-in-law were also employed by the Rescue Squad.  Sometime in 2005, the plaintiff began a sexual affair with his subordinate, a volunteer employee. When his wife discovered the affair, she reported it to their mutual supervisor.  The supervisor allegedly told the plaintiff “that he could not promise that the affair would not affect plaintiff’s job,” and that his continued employment depended “on how it shakes down.”  Subsequently, in 2006, the plaintiff moved out of the home he and his wife had previously shared and notified his supervisor that his marriage had “collapsed.”

Shortly thereafter, the supervisor met with the plaintiff and allegedly told him that he predicted the plaintiff’s marriage would end in an “ugly divorce.” Plaintiff testified that his supervisor informed him “that if there had been even the slightest chance of reconciliation”, he would not brought the issue to the attention of the Rescue Squad’s Board of Directors. The supervisor then purportedly told the plaintiff, “You had eight months to make things right with your wife.”  Since the plaintiff did not, the supervisor indicated he had alerted the Board and that the plaintiff was set for termination the next day.

At that point, the plaintiff asked his supervisor if he was being terminated for initiating the affair with his subordinate. His supervisor replied that if he had to terminate plaintiff, “it would be for one of four reasons. Two of those reasons were elimination of plaintiff’s job because of restructuring and poor work performance[.] Plaintiff testified that he could not recall the other two reasons.”

The plaintiff’s termination indeed occurred the following day, after the Board convened and approved his firing. Interestingly enough, the Board minutes gave a restructuring and plaintiff’s poor performance as the reasons for his termination. The plaintiff responded by suing the Rescue Squad under the LAD for, among other claims, discriminatory termination based upon marital status.  As part of his suit, the plaintiff presented evidence that — despite the Board’s stated reasons for his termination — he had been continuously promoted.  Moreover, the plaintiff argued that — contrary to his supervisor’s fears — he and his wife had divorced amicably.

A lower court dismissed the plaintiff’s marital status discrimination claim before it went to trial, reasoning that “plaintiff had failed to present any evidence that he was terminated because he was either married or unmarried or because he was having an affair, or any evidence that employees were treated differently based on whether they were single, married, separated or divorced. Instead, the court found that plaintiff presented proof that he was terminated because management was concerned about the likelihood of an ugly or messy divorce, which the court held did not give rise to a marital-status-discrimination claim.”

This decision was reversed on appeal, however.  The appellate court interpreted the LAD’s ban against marital status discrimination broadly to include the state of undergoing a divorce or being divorced.  Moreover, the appellate court found that the supervisor’s alleged comments indicating that the plaintiff was being terminated due to a potential “ugly divorce” was direct evidence of discrimination based on negative stereotyping of divorcing or divorced individuals.

The New Jersey Supreme Court agreed, upholding the appellate court’s decision and declaring that “marital status” under the LAD includes “those who are single or married and those who are in transition from one state to another. This interpretation embraces basic decisions an employee makes during his or her lifetime. A person considering marriage or divorce or confronting the death of a spouse should not fear that a marriage ceremony, a divorce decree, or a funeral would trigger a loss of employment or a promised promotion.”  The Supreme Court reasoned that this liberal construction of “marital status” furthered the LAD’s purpose of curbing discrimination based upon invidious stereotypes:

“Protecting those employees who are single, married, or transitioning between those marital states prevents an employer from engaging in commonplace stereotypes that a single employee is not committed to his career or that an engaged employee will be distracted by wedding preparations, or that a divorcing employee will be distracted from his job and even disruptive in the workplace, particularly if the estranged spouse or the spouse s friends and family are employed by the same employer.”

While the Smith decision is good news for employees are divorced or otherwise transitioning in marital status, a few words of caution are warranted:

First, Smith does not prohibit employers from creating and even-handedly enforcing anti-nepotism and non-fraternization workplace policies. For instance, your employer’s policies may prohibit married couples from working together in the same department, or superiors from engaging in romantic relationships with their subordinates.  Those policies are perfectly legal as long as they are applied to all workers in a fair and impartial fashion.

Second, Smith does not prohibit employers from taking adverse employment action against workers when their marital status negatively impacts their actual, real-world performance or wreaks workplace havoc.  For instance, if the pre-occupation and stress of a divorce causes a worker to miss deadlines, treat customers rudely, or otherwise fail to meet legitimate job expectations, the employer is legally entitled to discipline the worker. The same goes if married co-workers separate due to an intra-office affair, then subsequently engage in antics like loud arguments during work hours and retaliatory complaints to management.

Bottom line: while being divorced may not be used as grounds for dismissal, being a crummy employee makes you fair game for termination.

If you believe you are being subjected to unlawful workplace discrimination due to marital status, or due to any other protected class, call our offices today for a free consultation.

Leave a Reply

  • (will not be published)

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>