New Jersey Supreme Court To Decide Whether Employer’s Discharge Of An Employee Because Of The Anticipated Effect Of The Employee’s Imminent Divorce On The Workplace Violates New Jersey Law Against Discrimination
The New Jersey Law Against Discrimination (“LAD”) protects individuals from discrimination based upon several protected categories, including one’s “marital status.” But what is “marital status?” Does it mean only someone who has a legal document showing he or she is married? What about someone who is engaged to be married? Planning to get engaged to be married? Dating with the intention of eventually getting married? On the other end, does “marital status” include individuals who are soon to be unmarried, such as those who are separated or going through a divorce? Unfortunately, the LAD offers no definition of “marital status” to help answer these questions. Nor does the LAD expressly exclude anti-nepotism policies from its prohibition against marital status-based discrimination, despite that such policies permit employers to terminate or refuse to hire employees based upon their family relationship to a co-worker, including marriage.
The New Jersey Supreme Court recently reflected upon these and other quandaries when it heard oral argument on December 1, 2015, in the appeal from Smith v. Millville Rescue Squad, 2014 N.J. Super. Unpub. LEXIS 1548 (App. Div. June 27, 2014), cert. granted 2014 N.J. LEXIS 1157 (N.J. Oct. 20, 2014). The plaintiff in Smith and his wife both worked for Millville Rescue Squad (“MRS”), as did plaintiff’s mother-in-law and sister-in-law. Plaintiff had an affair with a subordinate in 2005, who later voluntarily resigned. Plaintiff’s wife discovered the affair in June 2005 and immediately informed plaintiff’s supervisor. There were no immediate repercussions on Mr. Smith’s employment due to the affair. Plaintiff’s supervisor “did not direct plaintiff to discontinue the relationship and took no immediate personnel action.” Id. at *4. However, plaintiff testified that after his supervisor learned of the affair from plaintiff’s wife, the supervisor warned him that “‘the one thing he can’t do is he can’t promise this won’t affect my job. The words he used, ‘All depends on how it shakes down.’” Id.
Plaintiff and his wife subsequently separated on New Year’s Day 2006. The following day, plaintiff let his supervisor know. Plaintiff’s supervisor thanked him for the notice and asked that plaintiff keep him apprised of any further developments. On February 16, 2006, according to plaintiff’s testimony, his supervisor told him that he would be terminated because he and his wife were going to go through an “ugly divorce.” Id. at *4-5.
Plaintiff brought an action against MRS for marital-status based and sex-based discrimination under the LAD, as well as constitutional violations and common law wrongful discharge. The constitutional and common law claims were dismissed before trial. At the trial, defendants presented evidence that the reason for plaintiff’s termination was a reduction in force, that plaintiff had performance issues, and that he was not qualified to perform the newly created positions. The trial court found that plaintiff had failed to establish all of the elements of his claims, because he did not sufficiently show that he was performing or qualified to perform the newly created positions, and because the new positions were filled by men as well as plaintiff’s estranged wife.
The trial court further held that plaintiff’s evidence did not show that he was terminated because he was either married or unmarried, i.e., because of his marital status. Rather, the trial court found that the reason for plaintiff’s termination was because management was concerned about the likelihood of a messy divorce and its disruption to the workplace, not because of plaintiff’s divorcing status. Therefore, the trial court granted defendant’s motion for judgment dismissing plaintiff’s claims at the close of Plaintiff’s case.
On appeal, the Appellate Division reversed dismissal of plaintiff’s marital-status based discrimination claim, finding that plaintiff established a prima facie case of marital-status-based discrimination through direct evidence. In doing so, the Appellate Division opined that the LAD should be interpreted broadly to encompass “divorcing” within the meaning “marital status.” The Appellate Division further held that since plaintiff’s supervisor had informed him that he would be terminated because he and his wife were going to go through an “ugly divorce,” plaintiff’s termination was due to plaintiff’s imminent divorce, not the impact of the divorce upon plaintiff’s ability to perform his job. The Appellate Division reasoned that MRS terminated plaintiff “because of stereotypes about divorcing persons — among other things, they are antagonistic, uncooperative with each other, and incapable of being civil or professional in each other’s company in the workplace.” Id. at *19. Thus, the Court opined that “[t]he reason for the termination was the prospect of divorce and its presumed effects, not the spouses’ common employer.” The Appellate Division further noted that it would not be a discriminatory act to take action against a divorcing employee who actually demonstrates antagonism, in civility, or lack of professionalism. Thus, it was the presumption or anticipation that divorcing persons would act in a disruptive way, based upon stereotypes about divorcing persons, which made the employer’s action discriminatory.
Although the Appellate Division found that termination expressly because of one’s marital status based upon anticipated notions of how such persons will act violates the LAD, it simultaneously held that anti-nepotism policies do not violate the LAD’s prohibition against marital-status based discrimination, despite that they too are based solely upon anticipated disruption to the workplace. Rather, because anti-nepotism policies are not targeted at employees based solely upon marital status, but also affect parent-child, sibling and other relationships, the Appellate Division concluded that they do not discriminate based upon marital status. Id. at 20-21 (citing Thomson v. Sanborn’s Motor Express, Inc., 154 N.J. Super. 555, 558-61 (App. Div. 1977)). Thus, under this rationale, even though no disruption to the workplace may have actually been demonstrated, employers can legitimately terminate or refuse to hire married or otherwise related individuals based solely on the anticipated disruption such relationships could have on the workplace.
Some of the questions posed from the bench at oral argument in Smith gave the impression that the justices were concerned with whether, and under what circumstances, it might be reasonable for an employer to terminate an employee who is going through a divorce from a co-worker based upon the anticipated disruption such relationship could have on the workplace. Also pondered by the justices during oral argument was the reasonableness of MRS acting proactively to remove a potentially volatile situation in order to avoid potential harm to rescue victims. At times, the Court’s questions appeared aimed at formulating a standard to apply which would balance the interests of an employer to take preventative measures to avoid disruption in the workplace, against the right of employees to be free from discrimination based upon marital-status, and where to draw the line. The Court’s taking note of the risk to rescue victims posed by conflict among MRS employees might also signal that such a standard would involve taking into consideration whether the nature of the work touches on safety issues, and possibly other factors. However, there were also questions posed which reflected that rather than formulate a legal standard for the courts to apply, the employer’s reason for termination is best left for the jury to decide, if there is any evidence to support a discriminatory reason. A decision is expected in 2016.
By Francine Foner, Esq. and Ty Hyderally, Esq.
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