Marital Status Discrimination in NJ: Can My Employer Fire Me If I’m Getting a Divorce?

Last updated July 27, 2017.

Most laypersons know that it is illegal for New Jersey employers to discriminate on the basis of protected categories such as race and gender. But did you know that the New Jersey Law Against Discrimination (the “LAD”) also prohibits employers from discriminating on the basis of marital status? This means employers cannot discipline, demote, terminate, or otherwise negatively impact your employment based upon whether you are married or not. For instance, an employer cannot terminate a woman for the sole reason that she’s a single mother.

Even so, relatively few lawsuits are brought claiming marital status discrimination under the LAD, in part because cultural mores regarding marriage, divorce, and parenthood have changed so dramatically since marital status was added to the law as a protected category. Given this paucity of lawsuits, courts have seldom had the occasion to consider and rule upon the scope of marital status protection under the LAD.

Getting a Divorce in Jersey? A Recent Court Decision Protects You

In a recent unpublished decision, Smith v. Millville Rescue Squad, 2014 WL 2894924 (N.J. Super.A.D.), the court ruled that marital status protection under the LAD extends to employees who are not only divorced, but in the process of being divorced.

The case itself reads like a soap opera. The plaintiff in Smith was a male employee who had worked for the Rescue Squad for 17 years, most recently as director of operations. Moreover, his wife was also a long-term employee of the Rescue Squad (in fact, the plaintiff had met her when she was a volunteer), as was his mother-in-law and two sisters-in-law. Sometime in 2005, the plaintiff had an affair with another employee, one of his subordinates. His wife discovered the affair, she and the plaintiff separated, and the wife reported the foregoing to Rescue Squad management.

According to the plaintiff, his manager told him: “he can’t promise this won’t affect my job. The words he used, ‘All depends on how it shakes down.’” In 2006, when the plaintiff and his wife failed to reconcile, the manager terminated the plaintiff, allegedly telling him that it was because he felt the divorce was going to get “ugly.” The plaintiff subsequently sued the Rescue Squad under the LAD, claiming in part that he was fired due to marital status discrimination. In the interim, the plaintiff’s divorce was finalized and he married the employee with whom he had his affair.

At trial, the Rescue Squad presented evidence that the plaintiff was in fact terminated due to poor work performance, which he refuted with evidence of his own. However, at the close of plaintiff’s case, the trial court dismissed his claim, ruling that he presented no proof that he was fired for being either married or single — only that his employer was worried about his divorce being ugly and disruptive. As such, the court concluded the plaintiff’s claim wasn’t viable because it wasn’t based on his marital status, but rather his anticipated conduct.

Marital Status Isn’t Black-or-White

The appellate court reversed, rejecting the trial court’s interpretation of “marital status” as being either a black-or-white “married” or “unmarried.” Instead, the court broadened the definition of marital status “to encompass the state of being divorced.” Indeed, the court expressly stated that marital status includes “stages preliminary to marital dissolution,” such as “separation and involvement in divorce proceedings.”

Under this new standard, the court held the plaintiff had a valid discrimination claim, based upon his status as being in the middle of a divorce. As for the trial court’s conclusion that plaintiff was fired not for his status, but for his anticipated conduct, the appellate court rejected this as speculative stereotyping:

[The Rescue Squad] terminated plaintiff because of stereotypes about divorcing persons — among other things, they are antagonistic, uncooperative with each other, and incapable of being civil or professional in other’s company in the workplace. . . [Rescue Squad’s] assumption that a divorcing person is unable to perform his or her job is functionally the same as an employer’s prohibited assumption that a female worker cannot perform certain physical labor, or a worker of a certain age lacks the energy to complete assigned tasks.

So, based upon the Smith case, is it safe to conclude that married co-workers may carry on affairs with other co-workers, file for divorce, then confidently and successfully sue for marital status discrimination if they are terminated before the divorce is finalized?

In a word, no. There are several reasons why Smith’s influence may in fact be limited.

All Bets Are Not Off: Intra-Office Conflicts Exist

First, Smith is an unpublished decision. For non-lawyers, this means it is less legally persuasive to courts.

Second, the Smith court didn’t address (and perhaps the Rescue Squad didn’t argue) the impact an ongoing divorce has upon other employees — especially when the divorcing parties are longstanding co-workers and likely to have built alliances and friendships within the company. These circumstances have the potential to stir up intra-office conflicts and animosities, and it is difficult to argue that an employer isn’t entitled to deal with this threat by terminating one or both parties. After all, employers often prohibit office romances between managers and subordinates, in part due to the discomfort and suspicion these relationships create for co-workers.

Third, the Smith court’s ruling simply allowed the plaintiff a new trial on his claim of marital status discrimination. Whether a second jury believes and sympathizes with the plaintiff is a different matter entirely.

If you believe you have been discriminated at work for any reason, contact the experienced employment attorneys at Zatuchni & Associates for a free case evaluation.

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