A Capehart Scatchard Blog

Divorcing Employees Deemed Member of Protected Class under the NJLAD

One aspect of the broad anti-discrimination protections afforded to employees under the New Jersey Law Against Discrimination (“NJLAD”) that is often overlooked involves the law’s prohibition on any type of workplace discrimination based upon an employee’s “marital status”.  The NJLAD does not define specifically what “marital status” actually means, but it has generally been understood to bar employment related decisions premised on whether or not someone was married or single. Given that understanding, the next logical question that arises is whether such protections apply to someone who is going through a divorce and transitioning from married to single status. That question was recently answered by the New Jersey Supreme Court in the case of Smith v. Millville Rescue Squad, ___ N.J. ___ (2016).

Plaintiff was employed as the director of operations for the defendant.  He was terminated a short time after he informed his supervisor that he was engaged in an affair with a volunteer worker and that he and his wife, who also worked for defendant, were separated and had commenced divorce proceedings. When allegedly informed of this, the supervisor told plaintiff that he could not promise that the revelation would not affect his job, and the same supervisor subsequently expressed his view that the divorce proceedings were going to “get ugly”.   Plaintiff was eventually terminated after a meeting of defendant’s board, purportedly for long standing job performance reasons, shortly after making this revelation about his on-going divorce proceedings.

In a lawsuit commenced challenging his termination filed against both the defendant and his own supervisor, the plaintiff alleged that he was wrongfully fired due to his sex and marital status.  At trial, at the conclusion of plaintiff’s case, the trial court granted the defense’s request for case dismissal.  The court determined that plaintiff failed to establish that he was terminated because (1) he was either married or unmarried, (2) because he was having an affair, or (3) because other employees were treated differently based on their marital status. The court likewise found that plaintiff’s evidence showed that he was terminated because defendant management was concerned about the likelihood of an acrimonious divorce, which the court declared did not give rise to a marital status discrimination claim. This ruling was eventually reversed on appeal, the Appellate Court determining that “marital status” under the law included the states of being separated and involved in divorce proceedings.

The Supreme Court upheld the decision of the Appeal Court, broadly ruling that the NJLAD protects employees going through a divorce from experiencing any adverse employment actions solely due to the fact that they were in the process of separating or ending their marriage. In justifying its decision, the Supreme Court believed that interpreting “marital status” to include married, single, and divorcing individuals, serves the statute’s remedial goal of ensuring that workplace decisions are made free of stereotypical notions that have no bearing on the employee’s ability to perform his\her job duties.

The Smith decision highlights again how broadly New Jersey courts interpret state anti-discrimination laws to cover things that most employers likely believe are not the subject of such legal requirements. In light of this decision, employers must again scrutinize their hiring and firing practices to ensure that employment-based decisions are being made free of any consideration of a person’s marital status, which now includes transitioning from married to being single.




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About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.


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