The New Jersey Appellate Division recently held that the provisions of the New Jersey law protecting employees from discrimination based on marital status includes employees going through a divorce.

Robert Smith, a Director of Operations at Millville Rescue Squad (“MRS”), supervised over a hundred employees, including his wife. His wife’s mother and two sisters also worked at MRS. Smith and his wife separated on January 1, 2006, as a result of Smith’s affair with another MRS employee. Smith had previously informed MRS about the affair and informed MRS of the separation on January 2, 2006. On February 16, 2006, Smith’s supervisor, John Redden, notified Smith that he would be discharged because he and his wife were “going to go through an ugly divorce.”

Smith filed a complaint against MRS and Redden in New Jersey state court alleging that he was a victim of discrimination based on marital status in violation of the New Jersey Law Against Discrimination (“NJLAD”), among other claims. The trial court dismissed Smith’s marital status claim, finding that Smith had presented evidence only that he was discharged based on his conduct or expected conduct (an “ugly divorce”) as opposed to his “status” as married or unmarried. Smith appealed.

The Appellate Division began its review by noting that although the NJLAD explicitly prohibits employers from making decisions that discriminate based on marital status, it does not define “marital status.” The Appellate Division held that marital status necessarily embraces stages preliminary to marriage, such as one’s engagement to be married, as well as stages preliminary to marital dissolution, such as separation and involvement in divorce proceedings. It commented that 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 to remain married. The Appellate Division noted its particular concern with the “modern trend” of increasing divorce rates, and that if marital status did not include persons who choose to divorce, a potentially large quantity of discrimination could go unchecked.

Applying its rationale to Smith’s claim, the Appellate Division found that Redden’s alleged statement that Smith would be discharged because he was “going to go through an ugly divorce” was sufficient to avoid dismissal. The Appellate Division rejected MRS’s arguments that Smith’s employment was terminated because of work performance or because of the impact the divorce was expected to have on his job. According to the Appellate Division, MRS discharged Smith because of stereotypes about divorcing persons — namely that they are antagonistic, uncooperative, and incapable of being civil with each other in the workplace. As such, it ruled that MRS terminated Smith’s employment because of a change in the status of that relationship — from married to soon-to-be divorcing, and the predicted, but unproved, impact of that status change on the participants’ ability to perform their jobs. The Appellate Division noted, however, that MRS could have taken action against Smith if he had actually demonstrated antagonism, incivility, or lack of professionalism.

Although this decision still permits employers to take employment action against employees who demonstrate actual misconduct stemming from a divorce, it is important that employers avoid taking adverse action based solely on perceptions or stereotypes of any kind.