New Jersey Supreme Court Expands Definition of Marital Status under the LAD

 

Since 1970, the New Jersey Law Against Discrimination (“LAD”) has protected those from being discriminated against based upon his or her “marital status.”  That definition, however, was never explained or addressed by the courts or the Legislature. Recently, the New Jersey Supreme Court expanded the definition of “marital status” in Smith v. Millville Rescue Squad, to include not just those who are single or married, but also those who are transitioning from one state to another.  In other words those who are in the process of getting a divorce, are separated, or already divorced may not be discriminated against by employers based upon a stereotype that the transition will negatively impact their work.

 

In Smith, plaintiff was employed by the Millville Rescue Squad (MRS) and was married to another employee of the rescue squad.  During the course of his employment, plaintiff began an affair with another volunteer at MRS and his wife subsequently discovered the affair.  Plaintiff then reported the affair to his boss, John Redden, and told Redden he could not promise that the affair would not affect his work.  Redden then told plaintiff that his continued employment would ultimately depend on how “it shakes down.”

 

Plaintiff and his wife decided to separate following the affair. When plaintiff moved out of the house, he reported it to Redden.  Redden then asked to be kept informed regarding the status of the marriage.  Approximately six weeks later, plaintiff met with Redden again. Redden then advised him that he did not believe plaintiff and his wife would ever reconcile and instead were facing an “ugly divorce” and that he would be forced to take the matter to the MRS Board of Directors. When plaintiff asked Redden if he was being terminated because he was the one who had the affair, Redden responded that plaintiff was being terminated for four reasons, two of which included poor work performance and restructuring.  Plaintiff was terminated the next day.  He later discovered Redden had met with the Board two weeks earlier to discuss plaintiff’s termination.

 

The trial court dismissed plaintiff’s claim of gender and marital based discrimination under the LAD.  The appellate division affirmed the dismissal of plaintiff’s gender discrimination claim under the LAD but reversed the dismissal of the marital status claim, holding that Redden’s comment that, “he was going to go through an “ugly divorce” constituted direct evidence of discrimination and that there was evidence that plaintiff had been terminated because of negative stereotypes about divorcing employees.” Id. at *4.

 

The New Jersey Supreme Court affirmed the Appellate Division’s decision.  It first examined the Legislative history of the LAD and noted that while there was no discussion of “marital status” based discrimination, the classification was added at a time when women were beginning to challenge company hiring practices of hiring only single women.  The Court then held that a broader interpretation of marital status, “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 which advances the overall purpose of the LAD to advance workplace equality. Id. at *8.

The Court further noted that this expanded definition did not conflict with anti-nepotism policies, which have long been upheld in conjunction with the LAD.  The Court held that uneven enforcement of such policies, however, may form the basis of a LAD claim.  The Court was also careful to state that employers may still discipline or terminate employees for poor job performance.  What they cannot do, the Court reasoned, is, “resort” to stereotypes in its assessment of a potential employee or an existing employee that bear no relation to the employee’s actual performance in the workplace.

 

Employers should pay attention to this decision and train their management employees accordingly.  They should also review their employment policies and in particular, any exceptions that have been made in the past to its anti-harassment or anti-nepotism policies.  While this decision greatly expands the definition of “marital status,” it also highlights the problems that occur with uneven application of such policies.  If you have any questions about this or any other employment matter facing your company, please contact an attorney at Trimboli & Prusinowski, LLC.