Marital Status a Consideration in Discrimination Claims Against Employers

My contributions to the Riker Danzig Family Law Blog are usually limited to matters dealing strictly with issues that squarely impact divorce litigation.  I recently researched a New Jersey Supreme Court employment law case decided this past summer, however, that I found of particular importance as it relates to client management for divorcing clients, and has been a burgeoning issue in recent years: clients being concerned about loss of employment resulting directly from their divorce.  Of course, as the divorce attorney, when this issue arises I am the first person the client looks to for advice.  Now there is some level of guidance found in Smith v. Millville Rescue Squad, 225 N.J.373 (2016), that can be given to the client just short of referring them to an employment attorney.  

The New Jersey Supreme Court, in Smith v. Millville, ruled that N.J.S.A. 10:5-1, entitled the Law Against Discrimination (”LAD”), protects employees from discrimination on the basis of marital status. This covers people who are separated, in the process of divorcing, or are divorced.

The Supreme Court unanimously ruled that employers cannot discipline, block the advancement of or terminate employees whose marital status may be disapproved of or be of concern when it has no bearing on job performance or the workplace environment.  Likewise, the Court noted that the Law Against Discrimination also bars discrimination against current or prospective employees because they are single, married, or transitioning from one status to the other.

In Millville, Plaintiff was a certified emergency medical technician and the Director of Operations for the Millville Rescue Squad, a medical transportation provider.  He had been with the company since 1998.  Allegedly, Plaintiff was having an affair with a volunteer, which was reported by Defendant to the Chief Executive Officer of the Rescue Squad.  Plaintiff’s testimony was that the CEO advised him to keep the CEO informed about his marital status, and that after he notified the CEO that he was going to file for divorce, he was terminated.  

Plaintiff filed a complaint against the Rescue Squad, the CEO/Supervisor and those who were involved in his termination. The complaint asserted wrongful discrimination on the basis of sex and marital status in violation of the LAD.  A trial commenced before a jury on the LAD claim. At the close of Plaintiff’s case, Defendant filed a motion for judgment pursuant to Rule 4:40–1 and a motion for involuntary dismissal pursuant to Rule 4:37–2. The trial court conducted oral argument, and granted the motion for involuntary dismissal, thereby dismissing Plaintiff's gender and marital status LAD claims. The Appellate Division reversed the dismissal of Plaintiff's marital status discrimination claim. The Appellate Panel held that the scope of the marital status protection under the LAD included the states of being divorced, engaged to be married, separated, and involved in divorce proceedings. The New Jersey Supreme Court agreed, stating:

Despite the absence of a definition of “marital status” or legislative history demarcating the boundaries of this protection, the stated purpose and goals of the LAD strongly suggest that we should consider “marital status” as more than the state of being single or married. A broader interpretation is consistent with the remedial purpose of the statute, advances the goal of “eradication ‘of the cancer of discrimination’ in the workplace,” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 199, 723 A.2d 944 (1999) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652, cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988)), and 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.

This concern from clients with similar stories arises more often than one might expect.  Over many years of practice, I have had numerous cases where a spouse notifies the employer of the sordid details of the client’s divorce and overtures are made regarding employment status.  While most employers generally do not take action or overtly intertwine the issues in the divorce with employment status, it is certainly a question or concern that clients have volleyed my way as a serious concern.  Here, the New Jersey Supreme Court specifically states:

In summary, we conclude that the LAD prohibits an employer from discriminating against a prospective employee or a current employee because they are single, married, or transitioning from one state to another. 

As clients go through divorce the often-asked question about whether an employer can terminate their employment due to the divorce should be referred to an employment lawyer. Suffice it to say, however, clients should be made aware that their status as a divorcing person is afforded some level of protection.   The Millville case makes it clear that a divorcing person is a “marital status” pursuant to the LAD statute and any termination action taken by an employer directly resulting from or due to that status is subject to scrutiny as a potential discriminatory termination. It will be interesting to see the application of Millville going forward as it relates to the myriad of issues that flow from divorce, causing divorce and employment to intersect and interact in ways similar to work-related absences due to divorce, child care issues, disruption at the work place from the former spouse, and other divorce-employment related matters.  

 Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or