I’m coming up on my 31st wedding anniversary. (Yes, I’m old.) We’ve had a lot of fun, and I’ve been pretty lucky. And, as in every marriage, we’ve had our share of fights. (As a wag once said, “I married Ms. Right. I just didn’t know her first name was ‘Always.’”) No one gets along all the time. But what happens when an employee is going through a nasty divorce, and management is worried about the negative effect on the employee’s job performance? Can that constitute prohibited discrimination based on “marital status”?
The “divorce as marital status” issue is now in the New Jersey Supreme Court, in Smith v. Millville Rescue Squad, and a decision is expected shortly. The facts of the case are kind of an employment practices train wreck. Smith worked for the Rescue Squad for 17 years, and eventually became an Operations Manager. His wife was also a long-term Rescue Squad employee. Not only that, her mother and two sisters were Rescue Squad employees. This created a pretty poor environment for an office affair, but Smith apparently had a wandering eye anyway, and became romantically involved with a subordinate (whom he later married). His wife discovered the affair, which of course is never a good thing. Divorce proceedings followed.
Smith told his supervisor, Redden, what was going on, and for some reason, Redden said that management couldn’t promise that the personal situation wouldn’t affect Smith’s job. (Lesson One for management: Think twice before commenting in any way on an employee’s personal life.) Redden later terminated Smith and told him that the termination was because of the impending “ugly divorce.” Redden said that “if there was any chance, even the slightest chance of reconciliation, he would’ve held off.” Redden also mentioned possible elimination of Smith’s job because of restructuring and poor work performance. (Lessons Two and Three: If the employee is at-will, you don’t have to go in to specifics about the reasons for firing; and juries and Courts both know that “poor work performance” is always management’s Alamo. If you’re going to go the “poor work performance” route, you’d better be sure the instances of poor work performance were properly and contemporaneously documented.)
The Trial Court dismissed Smith’s case, ruling that firing a person because of divorce proceedings doesn’t constitute illegal discrimination because of marital status. But the Appellate Division reversed, and noted that the LAD doesn’t define “marital status.” The Appellate Division also noted that the LAD must be given “a liberal reading in view of its remedial purpose.” According to the Court: “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 whether to remain married.”
The Appellate Division concluded that, based on the record, a jury reasonably could have found that the Rescue Squad had discriminated against Smith because of unproven and insupportable stereotypes: “The LAD does not bar an employer from taking employment action against a divorcing employee who actually demonstrates antagonism, incivility, or lack of professionalism…However, here, MRS responded not to any actual proved conduct. Rather, it acted on a fear, apparently based on 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.”
My guess, and it’s only a guess, is that this will be a slam-dunk before the Supreme Court, and that the Appellate Division will be affirmed.
Here’s something for management to consider, which I alluded to earlier in this post: Why in the world would you ever tell an employee that you were firing the employee because of a divorce, and that if he or she reconciled, things might be different? In fact, in the heavily litigious environment we have in this country, why would you ever tell an at-will employee anything other than “things just aren’t working out and we’ve decided to move in a new direction”? After all, if the employee is at-will, you can terminate that employee for any reason not prohibited by law, or for no reason. If for some reason you want to go further than that and can point to specific instances of poor workplace performance with documentary evidence, have at it. But if you start mentioning personal issues at any level, you’re probably asking for big trouble.
One other lesson from Smith: consult with your insurance advisor now to make sure you have adequate Employment Practices Liability Insurance. (But, of course, insurance law is a topic for our other blog.)
You can read the full Smith decision from the Appellate Division here.