New Jersey Supreme Court Considers Whether Firing an Employee for Getting Divorced Violates Anti-Discrimination Law

The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., protects employees against multiple forms of discrimination by employers. It is one of the most expansive anti-discrimination laws in the country. The New Jersey Supreme Court heard oral arguments in early December 2015 in a case, Smith v. Millville Rescue Squad, alleging discrimination based on marital status. The plaintiff specifically claims that the defendant fired him because he was getting divorced. The case involves the question of whether the plaintiff has established sufficient grounds for a claim under the NJLAD, and also whether divorce is included in the NJLAD’s protected category of “marital status.”

An employer may not discriminate against an employee, according to the NJLAD, on the basis of “marital status, civil union status, [or] domestic partnership status.” N.J. Rev. Stat. § 10:5-12(a). This applies to hiring, firing, and other decisions related to a person’s employment. The statute does not define “marital status,” so one could argue that the scope of protection is limited to situations in which an employer prefers an unmarried employee to a married one, or vice versa. It may not be clear, from that standpoint, whether an ongoing divorce falls under the statute’s concept of “marital status.” This is the central issue now presented in the Smith case. The trial court dismissed the plaintiff’s lawsuit, but the appellate court partly reinstated it. Smith v. Millville Rescue Squad, No. A-1717-12T3, slip op. (N.J. App., Jun. 27, 2014).

The plaintiff in Smith worked for the defendant for about 17 years, starting as an emergency medical technician (EMT) and eventually rising to the position of director of operations. His wife was a volunteer for the defendant, and they met through work. She generally worked in a subordinate position to him. After eight years of marriage, they separated in early 2006. The plaintiff had reportedly had an affair with another employee, who voluntarily resigned around the same time. The defendant learned about both the affair and the divorce at some point during this time period.

In mid-February 2006, about six weeks after the plaintiff and his wife separated, the defendant terminated the plaintiff, allegedly telling him it was because “it’s going to be an ugly divorce.” Smith, slip op. at 5. The defendant later claimed that the termination was due to poor job performance by the plaintiff, but he states that this was not discussed at the meeting when he was fired. The plaintiff also produced evidence of annual raises, including after the affair became known, and other indicators of good job performance.

The trial court granted the defendant’s motion to dismiss mid-trial, finding in part that the plaintiff had “failed to present evidence that he was terminated because he was either married or unmarried.” Id. at 10. The Appellate Division reversed as to the marital status discrimination claim, finding that the NJLAD’s protections also “encompass the state of being divorced.” Id. at 17. It remanded the case for further proceedings on the one claim, but the defendant’s appeal sent it to the state supreme court, which will now rule on whether “marital status” includes divorce.

The Resnick Law Group’s employment discrimination attorneys advocate for the rights of employees and job applicants in New Jersey. Contact us online, at 973-781-1204, or at (646) 867-7997 today to schedule a confidential consultation to discuss your employment law matter.

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