May My Business In New Jersey Lawfully Fire An Employee Because He Is Having Marital Problems?

“I married Miss Right. I just didn’t know her first name was Always.” – Red Skelton

In New Jersey, may an employer terminate a worker because that worker is having marital problems?  The short answer is: ‘No, but stay tuned to this station for further developments.’

The New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 – 10:5-30 (the “NJLAD”), renders it unlawful for all public and private employers, because of, among many other protected characteristics, the “marital status” of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.  N.J.S.A. § 10:5-12(a).  In the recent case of Smith v. Millville Rescue Squad, No. A-1717-12T3 (N.J. App. Div. June 27, 2014), cert. granted, 101 A.3d 1083, 220 N.J. 39 (N.J. Oct. 24, 2015), New Jersey’s Appellate Division held that the NJLAD’s ban on discrimination in employment because of “marital status” “protects persons from discrimination because they are in the process of being divorced.”

In other words, the Millville Rescue Squad Court held that, for purposes of the NJLAD, marital status encompasses not only “the states of being . . . married, and unmarried,” but also “the state of being divorced” and “stages preliminary to marital dissolution — separation and involvement in divorce proceedings.”

In October 2015, the New Jersey Supreme Court — the Garden State’s court of last resort — granted the defendant rescue squad’s petition for certiorari in the Millville Resque Squad case.  Upon considering the case, the New Jersey Supreme Court may either affirm or reverse New Jersey’s Appellate Division’s above-described decision.  A decision by the New Jersey Supreme Court is expected in 2016.

In Millville Rescue Squad, the plaintiff individual was the director of operations of the defendant, a non-profit organization providing emergency medical transportation and rescue services.  The defendant rescue service also employed the plaintiff’s wife.  The plaintiff engaged in an extramarital affair with a female subordinate at the rescue service.  The plaintiff’s wife discovered the plaintiff’s affair, the plaintiff’s paramour quit her employment with the rescue service, and the plaintiff and his wife separated.  The rescue service fired the plaintiff.

The rescue service’s direct supervisor told the plaintiff that he (the plaintiff) was being terminated because he and his wife were going to go through an ugly divorce.

The plaintiff sued the rescue service under the NJLAD, alleging that the rescue service terminated him because of his marital status for firing him because of, among other protected characteristics, his marital status.  At trial, after the plaintiff had presented his case, the Superior Court had entered an order involuntarily dismissing the plaintiff’s claim.

The trial court reasoned that the plaintiff’s proof showed that he was terminated neither because he was married nor because he was unmarried, but rather because management was concerned about the likelihood of an ugly or messy divorce; and that such proof did not give rise to an NJLAD claim for discriminatory discharge based on “marital status.”

In Millville Rescue Squad, New Jersey’s Appellate Division reversed in pertinent part the trial court’s order dismissing the plaintiff’s “marital status” NJLAD claim, and remanded.  In holding that the NJLAD’s “marital status” protection shields workers against discrimination because they are in the process of being divorced, the Millville Rescue Squad Court reasoned:

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.  [Plaintiff’s direct supervisor] 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.

. . . [H]ere, MRS responded not to any actual proved conduct. Rather, it acted on a fear, apparently based in stereotype, that such conduct would follow.  MRS’s assumption that a divorcing person is unable to perform his or her job is functionally the same as an employer’s prohibited assumption that a female worker cannot perform certain physical labor, or a worker of a certain age lacks the energy to complete assigned tasks.

Smith v. Millville Rescue Squad, No. A-1717-12T3, slip op. at 18-19.

Part of what makes Millville Rescue Squad (and other judicial decisions construing the NJLAD’s ban on “marital status” discrimination) necessary is that, unlike some jurisdictions’ anti-bias statutes, the NJLAD does not ban workplace discrimination based on a person’s status as a victim of domestic violence.  See, for example, the borough Of New York City Human Rights Law, N.Y.C. Admin. Code § 8-107.1 (forbidding employers with four or more employees from discharging from employment or refusing to hire a person, and from discriminating against a person in compensation or in terms, conditions or privileges of employment, because of the person’s actual or perceived status as a victim of domestic violence, or as a victim of sex offenses or stalking).

If the NJLAD prohibited discrimination in employment based on domestic violence victim status (which it does not), then — without the need for court decisions such as Millville Rescue Squad to construe broadly the NJLAD’s “marital status” protection — the many persons in New Jersey who are in the process of being divorced and who have been subjected to acts or threats of violence committed by their spouses would be shielded from discrimination at work on that basis.

Conclusion

At present in New Jersey — as per the Appellate Division’s recent decision in Smith v. Millville Rescue Squad — an employer may not lawfully fire a a worker because that worker is having problems in his marriage.  However, this year, on defendant rescue service’s appeal in the Millville Rescue Squad case, New Jersey’s court of last resort may either uphold or reverse New Jersey’s Appellate Division holding to this effect.  Businesses in the Garden State should stay tuned to this channel (that is, this blog) for news of the New Jersey high court’s decision.

If your company needs assistance or guidance on a labor and employment issue and your company is located in the borough Of Manhattan area, call Attorney David S. Rich at (347) 941-0760.