By Kathleen Kapusta, J.D.
New Jersey’s Law Against Discrimination protects all employees who have declared that they will marry, have separated from a spouse, have initiated divorce proceedings, or have obtained a divorce from discrimination in the workplace, declared the state’s highest court, explaining that marital status is not limited to the state of being single or married. While the LAD does not bar an employer from making a legitimate business decision to discipline or terminate an employee whose personal life decisions, such as a marital separation or divorce, have disrupted the workplace, "an employer may not assume, based on invidious stereotypes, that an employee will be disruptive or ineffective simply because of life decisions such as a marriage or divorce," the court stated, affirming the reversal of a trial court decision dismissing the marital-status discrimination claim of a discharged paramedic whose supervisor was concerned about the likelihood of his "ugly divorce" from his coworker wife (Smith v. Millville Rescue Squad
, June 21, 2016, Cuff, M.).
The EMT and operations director for Millville Rescue Squad (MRS) had an affair with a volunteer whom he supervised. When his wife—also an MRS employee— found out, she reported it to his supervisor. Although the volunteer left the MRS, the affair continued and several months later, the employee told his supervisor that his marriage had "collapsed." Soon thereafter, the supervisor told the employee he did not think there was any chance of reconciliation and he believed there would be an "ugly divorce." The supervisor also purportedly stated: "You had eight months to make things right with your wife." He was subsequently fired, allegedly because of an "operational restructuring" and poor work performance.
Lower court proceedings.
The employee sued, asserting claims of sex and marital status discrimination in violation of the LAD and the trial court, after the commencement of a jury trial, granted the defendants’ motion for involuntary dismissal. Reversing the dismissal of the marital-status discrimination claim, the appellate division, noting that the case raised the issue of the scope of the marital-status protection under the LAD, interpreted "marital status" to include the states of being divorced, engaged to be married, separated, and involved in divorce proceedings.
Noting that the threshold issue before it was whether the LAD’s prohibition against discrimination based on marital status extends to a person who has separated from his or her spouse and is in the process of obtaining a divorce, the New Jersey Supreme Court turned to the statute’s language. Although the LAD does not define "marital status," the court found that a broader interpretation was consistent "with the remedial purpose of the statute, advances the goal of ‘eradication of the cancer of discrimination in the workplace,’ and prevents employers from resorting to invidious stereotypes to justify termination of the employment of a never-married employee, an engaged employee, a separated employee, an employee involved in divorce litigation, or a recently widowed employee."
Concluding that marital status should be interpreted to include those who are single or married and those who are in transition from one state to another, the court found that this embraces basic decisions an employee makes during his or her lifetime and does not interfere with an employer’s legitimate business judgment and policies regarding its workforce. An employer is not prevented from disciplining or terminating an inattentive or disruptive employee, explained the court, but is instead prevented from resorting to stereotypes in its assessment of an employee that bear no relation to the employee’s actual work performance.
Nor does this interpretation disturb long-settled precedent harmonizing the LAD and anti-nepotism policies, said the court, observing that employers are free to adopt anti-nepotism policies but may not enforce them unevenly based on marital or any other protected status.
Next, the court found the trial court erred in granting the defendant’s motion for involuntary dismissal. If assumed to be true, the facts asserted by the employee demonstrated he was discharged "in significant part" based on his marital status. He testified that his supervisor was concerned his divorce would be "ugly" even though there was apparently no evidence supporting this and also stated that the supervisor told him that if he and his wife had been able to reconcile, he would not have been terminated.
Moreover, the court observed, the defendants were not enforcing an anti-nepotism policy—in fact, they openly permitted the employee and his wife to work together—but instead terminated him because of invidious stereotypes about divorcing persons. "Such discrimination is unlawful under the LAD," the court stated, finding that the trial court went awry when it evaluated his marital-status-discrimination claim through the prism of the McDonnell Douglas
circumstantial-evidence analysis rather than the direct-evidence analysis. Having submitted direct evidence of discrimination, the employee was not required to satisfy the four McDonnell Douglas
factors for establishing a prima facie case of discrimination based on circumstantial evidence. Thus, the trial court should have denied the defendants’ motion and permitted the jury to render a verdict on the employee’s marital status discrimination claim.