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

Last updated September 30, 2018.

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? What about employees who are going through a divorce?

The New Jersey Supreme Court recently answered those questions in the case of Smith v. Millville Rescue Squad, , ruling that the LAD’s protections against marital status discrimination 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 just because you and your spouse have called it quits or are in the process of doing so.

Case Example: Smith v. Millville Rescue Squad

Let’s take a deeper look at Smith v. Millville Rescue Squad and how it applies to marital status discrimination laws in New Jersey.

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 17 years, rose to be 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 having an 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.”

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.” The plaintiff testified that his supervisor informed him “that if there had been even the slightest chance of reconciliation,” he would not have 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”: Restructuring, poor work performance, and two reasons the plaintiff couldn’t remember by the time of trial.

The plaintiff’s termination indeed occurred the following day, after the Board convened and approved his firing. Interestingly enough, the Board minutes listed restructuring and the plaintiff’s poor performance as the reasons for his termination.

The Plaintiff Sues for Marital Status Discrimination: Lower Court Decisions

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.

The trial court dismissed the plaintiff’s marital status discrimination claim before it went to trial, reasoning that the “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 said he had been fired because management was concerned about the possibility of a “messy divorce.” In other words, it applied a narrow marital status discrimination definition.

This decision was reversed on appeal, however. The appellate court applied a broader definition of marital status discrimination, such that it included the “status” 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” were direct evidence of discrimination based on negative stereotyping of divorcing or divorced individuals.

Marital Status Discrimination Case Reaches NJ Supreme Court

The New Jersey Supreme Court agreed with the appellate court, upholding its 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.”

According to the high court, “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 marital status discrimination definition 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.

Cautions on Marital Status Issues in the Workplace

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

Married Couples in the Workplace

Smith does not prohibit employers from creating and even-handedly enforcing anti-nepotism and non-fraternization workplace policies. An employer who implements such policies in a fair and impartial fashion is not engaging in discrimination against married couples in the workplace.

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.

Marital Status Negatively Affecting Work

Smith also 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 preoccupation 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 would be true if married co-workers separated due to an intra-office affair, then subsequently engage in antics like loud arguments during work hours and retaliatory complaints to management.

Talk to a Lawyer Experienced in Marital Status Discrimination Cases

In short, although being divorced may not be used as grounds for dismissal, being a crummy employee makes you fair game for termination.

Even so, if you believe you are being subjected to unlawful marital status discrimination in the workplace, or due to your membership in any other protected class, call our offices today for a free consultation.