NJ Man is Fired Because Company is Worried About His Possible Nasty Divorce

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2016

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Wedding rings, scales of justiceAn employee’s pending divorce is not a legitimate factor upon which to base employment decisions, according to a unanimous decision of the New Jersey Supreme Court. The court interpreted the state’s ban against discrimination on the basis of marital status to include separation and divorce.

While the decision sets precedent only for the state of New Jersey, it reflects a growing trend to protect lifestyle choices from employment discrimination. About 20 states include marital status as a protected class for the purpose of employment discrimination. Many of those states are likely to follow New Jersey’s lead in deciding that employers cannot fire an employee who chooses to divorce unless the divorce has an impact on the employee’s job performance.

States that designate marital status as a protected classification do so to prevent employers from basing employment decisions on stereotypes about an employee’s likely job performance. For example, an employer might fear that a married employee would be unwilling to work late or to travel. That stereotype prompted some airlines in the 1970s to hire only single flight attendants. Marital status discrimination laws combat the assumption that married employees prefer to spend time with their spouse rather than being fully dedicated to their employer. The laws also prevent employers from assuming that married employees are more reliable than single employees.

Facts of the New Jersey Case

The New Jersey case arose under the state’s Law Against Discrimination, which prohibits employment discrimination on the basis of several characteristics, including marital status. The question before the court was whether “marital status” protection extends to an employee who has separated from his or her spouse and is in the process of obtaining a divorce.

Robert Smith was employed as the director of operations of the Millville Rescue Squad. His wife also worked for the rescue squad. Smith had an affair with a volunteer worker. Smith’s wife reported the affair to Smith’s supervisor and Smith later acknowledged the affair. The supervisor told Smith that he could not promise that the affair would not affect Smith’s job.

Shortly after Smith reported the affair to his supervisor, the volunteer left her position with the rescue squad. The affair continued and Smith’s relationship with his wife deteriorated. Smith’s supervisor told him that he would not take the matter to the board if reconciliation was likely, but that he would need to consult the board if Smith and his wife could not resolve their differences.

Months after he disclosed the affair, Smith informed his supervisor that he was separating from his wife and was about to start divorce proceedings. Fearing that the divorce would become “ugly,” Smith’s supervisor took the issue to the rescue squad’s governing board. The board members voted to terminate Smith’s employment, claiming that his job performance had been poor for some time.

Smith contended that the explanation for his termination was a pretext, designed to conceal the board’s true motivation. Smith based that contention on the fact that the board did not vote to terminate him until it learned of his pending divorce. Other evidence of pretext included Smith’s annual raises, his two promotions, and the absence of formal discipline prior to the termination, all of which were inconsistent with a termination for poor job performance. Smith also testified that his supervisor all but admitted that the excuse for firing Smith was pretextual.

At his trial, Smith testified that the divorce was amicable and that he continues to have a good relationship with his former wife. He also testified that two other supervisors had dated employees they supervised and that his employer took no action against them.

After Smith finished presenting his evidence, the court dismissed his lawsuit. The court ruled that Smith presented no evidence that he was terminated because he was either married or unmarried, and that management’s fear that he would have an acrimonious divorce did not constitute marital status discrimination.

Supreme Court’s Ruling

The New Jersey Law Against Discrimination does not define “marital status.”
The New Jersey Supreme Court interpreted “marital status” in light of the law’s purpose:  fostering equal treatment of employees. The court concluded that limiting “marital status” to the status of being single or married did not serve that purpose. Instead, viewing marital status as embracing the status of being single, married, separated, widowed, or divorced would further equality of treatment while discouraging employers from basing decisions on stereotypes about the unsuitability of single, married, separated, or divorced individuals for specific kinds of employment.

The court concluded that employees who are in a transition between being married and single are protected by the law. Since there was evidence from which a jury could have found that Smith was fired because he was separated or in the process of divorcing, his case should not have been dismissed. The court therefore sent his case back to the lower court for a new trial.

The Risk of Liability for Employers

The federal Civil Rights Act prohibits employment discrimination on the basis of race, gender, and nationality. Other federal laws prohibit discrimination on the basis of age and disability. Marital status is not one of the classifications protected by federal law.

Twenty states have laws that prohibit marital status discrimination in employment. In addition, Indiana law prohibits discriminating against teachers on the basis of their marital status. Employers in those states must take care to assure that any employment actions they take are not influenced by an employee’s marital status.

Whether other states will follow New Jersey’s lead may depend on whether and how their state’s law defines “marital status.” Some states (such as Hawaii and Nebraska) define the term as “being married or single.” Other states define the term more broadly. Many states do not define the term at all. Those are the states that are most likely to be persuaded by the reasoning of the New Jersey Supreme Court.

Even when definitions are clear, determining whether an adverse employment action constitutes marital status discrimination is not always easy. For example, if Smith had been fired for having a sexual relationship with a volunteer who was under his supervision, and if that same decision would have been made without regard to his marital status, New Jersey law would probably not have been violated. On the other hand, treating a married employee differently from an unmarried employee who engages in identical conduct will typically violate laws that prohibit marital status discrimination.

Anti-nepotism policies generally occupy a middle ground. Prohibiting two spouses from working for the same employer might constitute marital status discrimination, but prohibiting one spouse from directly supervising another spouse may be justified as a means of assuring that job performance is not affected by the intimacy of a relationship.

The most common defense to charges of employment discrimination in discharge cases is that the employee was fired for poor job performance, not for membership in a protected category. Employers have a difficult time justifying a termination for poor job performance when they have not documented deficiencies in performance reviews. In this case, the rescue squad failed to conduct the performance reviews that its employee handbook promised. That is a surprisingly common lapse and one that businesses should take time to address. It is difficult for an employer to persuade a jury that it has acted appropriately when it fails to follow its own policies.

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