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Friday, July 15, 2016

Can My Boss Discriminate Against Me Because I Am Going Through a Divorce?

Your boss may not discriminate against you because you are going through a divorce. The New Jersey Supreme Court recently unanimously expanded state law to protect individuals going through a divorce or who are divorced or separated from discrimination based on their marital status. The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (“NJLAD”)prohibits employment discrimination based on on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. The NJLAD does not expressly define the term “marital” status and it has been left to the Courts to interpret this term. Until a recent Supreme Court decision, there has been a question as to whether the term applies only to persons who are married or single. 


The New Jersey Supreme Court in Smith v. Millville Rescue Squad, decided on June 21, 2016,  reiterated the remedial purpose of NJLAD and expanded its protections not only from discrimination based on marital status as being single or married, but clearly in it holding stated it applied also to those who in the process of divorcing or divorced or are separated. As a result it is now clear, that your employer cannot terminate you, deny you training or promotions that are offered to other similarly qualified and situated employees who are not in the process of a divorce or separated or divorced.

In Smith v. Millville Rescue Squad, the plaintiff was a long-term employee of the Millville Rescue Squad ("MRS"). His wife also worked there for the prior eight years.  Plaintiff had an affair with a subordinate employee and he and his wife separated. When his employer learned of the affair and the separation, they told him that they could not promise him that it would not affect his employment. After months of separation, plaintiff told his supervisor that it was not likely that he and his wife would reconcile. His supervisor made a comment  that he anticipated  an "ugly divorce" and that he would have to bring the issue to the MRS Board. The MRS Board voted to terminate his employment, noting "operational restructuring," "very poor" performance, and more importantly his supervisor's belief that there were no options other than his termination. Some of reasons they gave him for the termination were job "restructuring" and "poor job performance." At the trial court level, the court dismissed both of plaintiff's claims of marital status and sex discrimination.

The Appellate Division reversed the dismissal of plaintiff's marital-status discrimination claim and  interpreted “marital” status to include the states of being separated and involved in divorce proceedings.  The Court further explained that this protection includes the stages preliminary to marriage and the stages preliminary to marital dissolution. The Appellate Division determined that plaintiff presented evidence that he was terminated based on negative stereotypes about divorcing employees that his employer had held.

The matter did not end there. The Appellate Decision went on to the NJ Supreme Court who had to ultimately decide the question whether the statute’s prohibition against discrimination based on "marital status" extends to a person who is in the process of obtaining a divorce and has separated from their spouse. 

In analyzing the issue, the Court examined the broad rule that applies to the statue, calling for a broad and liberal construction in order to advance beneficial purposes of the NJLAD because it is "remedial legislation intended to ‘eradicate the cancer of discrimination' in our society." The Court stated, “Because discrimination is still a pervasive problem in the modern workplace, even novel arguments advanced by victims of workplace discrimination require our utmost care and attention in order that we may be steadfast in our efforts to effectuate the Legislature s goal of workplace equality.”

The Supreme Court held that the trial court erred in finding that plaintiff failed to establish that he was terminated under circumstances that give rise to an inference of discrimination and it affirmed the judgment of the Appellate Division.

The Court applied a broad interpretation, consistent the social goals of the NJLAD and expanded the definition of "marital status" to include those who are single, married, or are in the transition from one state to another ( in the process of a divorce). The Court found that this interpretation is essential and designed to prohibit employers from resorting to negative stereotypes about persons relating to the employee’s personal life decisions.

The Supreme Court Opinion stated, “ In summary, we conclude that the LAD prohibits an employer from discriminating against a prospective employee or a current employee because they are single, married, or transitioning from one state to another. The LAD aims to discourage the use of categories in employment decisions which ignore the individual characteristics of particular applicants. Sisler, supra, 157 N.J. at 204 (quoting Ogden v. Bureau of Labor, 682 P.2d 802, 810 (Or. Ct. App. 1984), aff d in part and rev d in part, 699 P.2d 189 (Or. 1985)). It does not, however, prohibit employers from considering factors that relate to the demonstrated needs of the employer and the actual capabilities of an individual to perform the job. Ibid. (quoting Ogden, supra, 682 P. 2d at 810). Therefore, the LAD does not prohibit an employer from firing an employee who is engaged in a dispute -- marital or otherwise -- that has become so contentious that it interferes with his or other employees ability to carry out their work.”

It is now settled law that negative stereotypes about divorcing persons, thinking that they automatically are unable to keep satisfactorily performing their job, are not emotionally fit,  or consequently not sufficiently focused to be qualified for promotions etc., because they are separated or in the divorce process, may not be used as reason to terminate them, or fail to give them promotions etc. 

If your employer discriminated against you because of your marital status, it is essential for you to contact an experienced and competent employment attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today for a free consultation.


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