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Do Discrimination Law Protect Divorcing Workers?


Do the laws against discrimination in the workplace protect divorcing workers? They do, according to a recent New Jersey case decided last Friday.

Robert Smith had been employed by MRS, a Millville, New Jersey emergency services provider for 17 years. Prior to his termination in 2006, he was in a director of operations position in which he supervised as many as 150 employees, according to the opinion. One of those employees was Smith's wife, who began as a volunteer but later became a paid employee who was subordinate to Smith but received evaluations from his supervisor, executive director John Redden.

In his complaint, Smith said MRS pushed him out of his position because of his gender, and because he and his wife decided to divorce following Smith's extramarital affair with another MRS employee. After Redden was informed of the affair and the possibility of the relationship ending, Redden allegedly told Smith his continued employment depended on how the issues in his marriage were resolved, the document said.

Smith claimed Redden had fired him in February 2006 after Smith told him a reconciliation with his wife was unlikely. Redden allegedly told Smith he was being terminated because he would soon be going through an "ugly divorce."

Smith sued for wrongful termination, claiming that he was discriminated against because of his marital status. The trial court dismissed his claim, but the court of appeals reinstated it. One of the primary issues was whether the term "marital status" as used in the anti-discrimination laws was meant to include divorce. Some states have expressly limited the scope of the term to the status of being married and unmarried. Other states, like New Jersey, have not imposed such a limit. The court stated:

Consequently, we interpret "marital status" to encompass the state of being divorced. Divorce unquestionably affects marital status. Particularly given modern trends, it would significantly undermine the marital status protection, if an employer could freely discriminate against persons who choose to divorce…As one commentator has stated… "Whether a particular individual is married, single, divorced or widowed cannot be a consideration in the terms and conditions of that individual's employment."… "Marital status" necessarily embraces stages preliminary to marriage — one's engagement to be married. The term also covers stages preliminary to marital dissolution — separation and involvement in divorce proceedings. The apparent purpose of the ban on marital-status-based discrimination is to shield persons from an employer's interference in one of the most personal decisions an individual makes — whether to marry, and to remain married.

According to the court, "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. Redden fired plaintiff to avoid the feared impact of an 'ugly divorce' on the workplace; and because plaintiff failed to reconcile with his wife over an eight-month period."

The takeaway? Laws against marital status discrimination in the workplace, including the New York City Human Rights Law, may encompass divorce as a protected activity. Although not every state has come to the same conclusion, courts in New York City have interpreted the law as including divorce and even engagement. If you feel you have been discriminated against due to your marital status in New York, call the attorneys at Schwartz & Perry LLP.
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