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Choosing Sides in a Divorce: Does it Apply to Employers Too? NJ Supreme Court Weighing Contours of “Marital Status” Discrimination

In a case reminiscent of the Curb Your Enthusiasm episode where Cheryl leaves Larry, forcing their friends to choose post-split allegiances (to Larry’s dismay, Ted Danson, the Funkhousers (Super Dave Osborne and Blossom) and even restauranteur Primo, all chose Cheryl), an employer, upon hearing of co-worker spouses’ impending divorce, felt compelled to choose sides and terminated the husband’s employment while retaining the wife.

That case, Smith v. Millville Rescue Squad, in which the plaintiff husband alleges that he was a victim of unlawful marital status-based discrimination under New Jersey’s Law Against Discrimination (LAD), is currently before the New Jersey Supreme Court, which heard oral argument last week.  The facts of the case are fascinating and worth a read, but let’s focus on the salient legal issue: how to define "marital status" under the LAD.

The Trial Court Dismisses the Case Because The Discrimination Was Based on an Impending Divorce Not the Plaintiff’s Actual Status as Married or Unmarried

The trial court dismissed the husband plaintiff’s claims because of the absence of evidence that the employer terminated him because of his status as either married or unmarried.  Rather, the court concluded, plaintiff presented proof that he was terminated because management was concerned about the likelihood of an ugly or messy divorce.  At most, such proof established a termination based on plaintiff’s conduct or expected conduct, as opposed to his actual status.  The court concluded that such proof did not give rise to a marital status discrimination claim.

The Appellate Division Reverses Defining “Marital Status” More Broadly

The Appellate Division reversed last summer.  The court began its analysis by noting that (i) the LAD does not define “marital status,” (ii) New Jersey courts “have not expressly addressed whether the term encompasses status as a divorced person, or a person about to be divorced,” and (iii) “[t]he legislative history is also un-illuminating on the subject.”  In assigning the term “marital status” a broad meaning, the court concluded:

In the absence of a narrow definition, we reject the trial court’s interpretation that “marital status” encompasses only two states of being: married, and unmarried.  Rather, we accord LAD a liberal reading in view of its remedial purpose. … Consequently, we interpret “marital status” to encompass the state of being divorced.  Divorce unquestionably affects marital status.  Particularly given modern trends, it would significantly undermine the marital status protection, if an employer could freely discriminate against persons who choose to divorce. … “Marital status” necessarily embraces stages preliminary to marriage—one’s engagement to be married.  The term also covers stages preliminary to marital dissolution—separation and involvement in divorce proceedings.  The apparent purpose of the ban on marital-status-based discrimination is to shield persons from an employer’s interference in one of the most personal decisions an individual makes—whether to marry, and to remain married.

In addressing the employer’s stated reason for termination (i.e., the divorce’s anticipated impact on plaintiff’s job performance), the court explained:

LAD does not bar an employer from taking employment action against a divorcing employee who actually demonstrates antagonism, incivility, or lack of professionalism.  That would constitute an employment action based on a person’s conduct, not his or her status.  See N.J.S.A. 10:5-2.1 (permitting discrimination “on the basis of competence, performance, conduct or any other reasonable standards” (emphasis added)).  However, here, [the employer] responded not to any actual proved conduct.  Rather, it acted on a fear, apparently based in stereotype, that such conduct would follow.  [The employer’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.

The Supreme Court Hears Oral Argument Over the Issue

At oral argument last week, the employer’s nuanced approach took an ever-so-slightly different tack, as it argued that its termination decision was based on a judgment about the impact on the workplace of the divorce, not a judgment or stereotype of divorce itself.  Whether that carries the day remains to be seen.  In the meantime, employers would be well-advised to refrain from making personnel decisions based on “marital status” defined as broadly as possible to include, an employee’s or applicant’s status of being married, remarried, engaged to be married, single, separated, divorced, widowed and so on.  We will keep you posted concerning the New Jersey Supreme Court’s forthcoming decision.

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David Katz