[co-author: Vinny Beraldo]
Unfortunately, not all marriages are happily ever after. When divorce seems inevitable, losing your job as a result of a looming divorce is something no employee wants to worry about. On June 21, 2016, the New Jersey Supreme Court in Smith v. Millville Rescue Squad (074685 (A-19-14) unanimously ruled that the New Jersey Law Against Discrimination’s (“NJLAD”) protection against discrimination on the basis of marital status also includes protection for divorced employees. The New Jersey Supreme Court upheld the 2014 decision of the Appellate Division which concluded that the Millville Rescue Squad’s decision to terminate the plaintiff, Robert Smith, based on an assumption about his ability to work with his ex-wife was discriminatory. In finding that the protections afforded by NJLAD’s marital status are not limited to the state of being single or married, the New Jersey Supreme Court effectively extended the reach of the NJLAD to include those who are separated, going through a divorce or divorced and recently widowed. Employers are prohibited from assuming, based on “invidious stereotypes,” that an employee will be disruptive or ineffective simply because of their marital status.
Smith, a 17-year veteran at Millville Rescue Squad (“MRS”), was allegedly fired when his supervisor heard the news about an impending separation from his then-wife and coworker. Knowing the contentious nature of divorces, and worried about the spillover effect of a potential divorce involving two of his employees, Smith’s supervisor allegedly warned him that his continued employment with Millville was contingent on how the separation turned out. After receiving confirmation from Smith that an amicable reconciliation was unlikely, Smith’s supervisor allegedly stated that he could not promise that it would not affect plaintiff’s job, as he believed Smith and his co-worker wife would certainly have an “ugly divorce”. Smith was subsequently terminated for performance based on “company restricting” reasons.
Smith ultimately filed suit for wrongful termination and discrimination in violation of the NJLAD based on marital status, claiming the reasons given for his departure were discriminatory, improper and pretextual. At oral argument before the New Jersey Supreme Court, the attorney for MRS conceded that although Smith’s supervisor’s comments were made in reference to the potential negative impact the divorce would have in the workplace, the disparaging comments were not signifying a bias against divorce itself. Smith contended that the supervisor’s ugly comment demonstrated clear evidence of prejudice given his stellar performance record.
Notably, the New Jersey Supreme Court was careful to emphasize that the presumptive extension of NJLAD does not preclude employers from implementing and enforcing “anti-nepotism” policies in the workplace, confirming that the ability of an employer to restrict employees related by blood or marriage from working together has not been diminished. Nonetheless, such policies must be enforced in a nondiscriminatory manner and in strict adherence the precedent set by NJLAD. Additionally, the Court further clarified that employers are allowed to discipline employees based on performance and conduct, irrespective of their marital status so long as the reason for their discipline is not related to circumstances in his or her personal life.
As a result of this decision, employers must use caution when terminating an employee who is either in the process of getting divorced or is divorced. The decision to terminate an employee cannot be based on an assumption about an employee’s inability to perform their job given for reasons related to their marital status. The decision to terminate must only be based on actual workplace conduct or performance issues unrelated to marital status that has been clearly and routinely documented.
