Recently, Tony Dungy, former NFL head coach and current NBC analyst, became embroiled in controversy over his remark that, were he still coaching, he would not have drafted the first openly gay college football player, Michael Sam, not because of Sam’s sexual orientation, but because of the anticipated distraction his presence on the team would cause. A recent unpublished Appellate Division opinion addressed a similar question as to whether an employment decision based on a potential “disruption” at the workplace, resulting from an employee’s protected status, can be considered distinct from a decision based upon the protected status itself. A petition to the Supreme Court of New Jersey has been filed.
The per curiam decision in Smith v. Millville Rescue Squad (App. Div. June 27, 2014), appears to give rise to the inclusion of divorcées as a protected class under the New Jersey Law Against Discrimination (LAD) when it reversed the trial court’s dismissal of the plaintiff’s discrimination claim based on marital status, at the conclusion of the plaintiff’s case in chief. The Smith court held that the plaintiff had presented direct evidence of marital status discrimination after the plaintiff notified his supervisor that he was getting divorced and was subsequently fired. This evidence was sufficient to meet the plaintiff’s initial burden, and the court found that the trial should have continued to then allow the defendants an opportunity to meet their burden of persuading the jury that “an illegal bias played no role in the employment decision.”
The plaintiff, Robert Smith, had worked for the Millville Rescue Squad (MRS) from 1989 until his termination in 2006. He began as a volunteer EMT in 1989, became a full-time paid EMT in 1996, and received two more promotions before becoming the director of operations in 1998. The plaintiff was married to another MRS employee since 1997. In June 2005, the plaintiff’s wife discovered he was having an affair with yet another MRS employee, and Smith’s wife told the plaintiff’s immediate supervisor, Chief Executive Officer John Redden. Smith then approached Redden to discuss the situation with him. Smith testified that during this conversation, Redden told Smith that Redden could not promise Smith that the marital situation wouldn’t affect Smith’s job, but that it would “all depend on how it shakes down.”
Seven months later, on Jan. 2, 2006, Smith met with Redden to inform him that though he and his wife had attempted to reconcile, those efforts had failed and Smith had moved out of the marital home. Six weeks later, Smith and Redden again met. According to Smith’s testimony, Redden reminded Smith of their conversation the previous June, in which he had told Smith he could not guarantee that the situation with his wife would not affect his job. Redden then stated that he anticipated that it would be an “ugly divorce” and that Redden would have to inform the board of directors. Redden then stated that he would delay going to the board if Smith would be willing to reconcile with his wife. When Smith rejected this proposition, Redden offered Smith the alternative of electing to resign in lieu of termination.
The following day, Smith informed Redden that he would not resign and Redden responded that the board had decided to terminate him. Redden then stated that his termination was due to Smith’s poor work performance that had not been remediated, in addition to job elimination based upon a restructuring coincidentally recommended by an independent consultant.
Smith’s divorce was finalized on September 2006. In October 2008, he married the employee with whom he had had the affair. Smith’s ex-wife was not fired and she was promoted to one of the new positions created in the wake of Smith’s job elimination and corporate restructuring.
The lower court found that Smith had not presented evidence that his termination gave rise to an inference of marital status discrimination. In so doing, the lower court allowed that “[a]t best, the evidence introduced by plaintiff showed that the decision to terminate him was based upon the expected adverse impact that the divorce action would have” on Smith’s future work performance. The trial court distinguished anticipated conduct and disruption based upon a divorce, from the divorce itself.
The Appellate Division did not concur with this distinction. The court first recognized that Smith had produced direct evidence of discrimination based upon a protected category, in that Redden actually told Smith that he would keep his job—if he reconciled and stayed married to his wife, but that if he did not, Redden anticipated the divorce to be “ugly” and would recommend his termination.
In its determination of what constituted discrimination based upon marital status, the court considered that the New Jersey legislature chose not to define narrowly the term “marital status” and inferred that the phrase should therefore be broadly construed in furtherance of the LAD’s remedial purpose. Accordingly, the court held that “marital status” includes the preliminary stages of marriage as well as its dissolution. Thus, an employee’s engagement, separation, marriage or divorce all fall within the auspices of this protected category. The court found that there was enough evidence from which a jury could find that the plaintiff was fired due to his marital status, based upon Redden’s statements and the fact that there were other single employees engaged in romantic relationships with co-workers and MRS did not seek to intervene in those couples’ affairs.
While the trial court had opined that there was nothing illegal about termination based upon an employer’s anticipation of an employee’s future conduct, the Appellate Division found this to be a distinction without a difference and found that “MRS terminated plaintiff because of stereotypes about divorcing persons—among other things, they are antagonistic, uncooperative with each other, and incapable of being civil or professional in each other’s company in the workplace.” Should the employee’s work performance actually suffer as a result of a divorce, and the employee prove himself to be incapable of acting in a professional or civil manner, the employer can act upon this demonstrated conduct. However, the mere anticipation that an employee beginning divorce proceedings will act in an antagonistic, disruptive way is precisely the kind of speculative, negative stereotype that the LAD was created to eradicate.
To illustrate further its point, the court cited to a New Jersey Supreme Court opinion wherein the court noted in its analysis of a disability discrimination claim, that “[t]he essence of discrimination…is the formulation of opinions about others not on their individual merits, but on their membership in a class with assumed characteristics.” Jansen v. Food Circus Supermarkets, 110 N.J. 363, 378 (1988). This is in line with the federal EEOC best practices published on the commission’s website, which counsels employers to “gauge the actual disruption” presented in the workplace rather than “merely speculating that disruption will result.”
Respondent MRS argued that New Jersey courts have previously upheld an employer’s decision to terminate an employee based upon the plaintiff’s relationship status with another co-worker. In Thomson v. Sanborn’s Motor Express, 154 N.J. Super. 555 (App. Div. 1977), the Appellate Division affirmed the lower court’s dismissal of the plaintiffs’ discrimination claims based upon marital status. In Thomson, however, the court was addressing an employer’s antinepotism policy, which prohibited employees who were relatives from working in the same department. A termination in accordance with this policy did not violate the LAD’s proscription of an adverse employment action based upon marital status because it did not single out married workers, but rather workers who had any type of familial relationship, whether through marriage, birth or otherwise. The Smith court reaffirmed that antinepotism policies generally do not constitute discrimination based on marital status under the LAD.
Two Appellate Division decisions subsequent to Thomson presented facts somewhat analogous to Smith’s situation. In Slohoda v. U.P.S., 193 N.J. Super. 586 (App. Div. 1984), and the opinion that followed once the plaintiff again appealed from the trial court’s dismissal of his discrimination claim on remand, Slohoda v. U.P.S., 207 N.J. Super. 145 (App. Div. 1986), it was determined that the employer’s actions in terminating an employee violated the LAD’s proscription against adverse employment actions based upon an individual’s marital status. In Slohoda, the plaintiff was having an extramarital affair with a subordinate employee. Though there were other UPS employees who were engaged in romantic relationships with co-workers, the plaintiff’s supervisor told the plaintiff that the reason for his termination was that the others were “single folks” and that plaintiff was a married man. The Appellate Division held that because the employer tolerated romantic relationships between co-workers who were single, but not those of employees who were married, the plaintiff’s termination was based upon the plaintiff’s marital status, and this uneven discharge policy was in violation of the LAD.
The addition of “marital status” as a protected category under the LAD was first introduced as an amendment to the statute in 1970. It was apparently added to help address discrimination against women in the workplace, i.e., to prevent employers from basing their employment decisions on either a female’s unmarried status, or a presumption of her future plans for a family if she married. As the New Jersey Supreme Court in 1973 acknowledged:
This amendment was the result of a growing consciousness across the country…that females were and are pervasively discriminated against in American society in respect of employment and promotional opportunities, with consequences not solely of injustice on an individual basis but also of injury to the national welfare in terms of the most advantageous deployment of available skills and talents in the professional and general work force.
Passaic Daily News v. Blair, 63 N.J. 474 (1973).
Now, 40 years later, this protection has expanded to adapt to modern social issues faced by employees today—divorces are far more common and can cause significant life changes.
The impact of this decision has yet to be determined. MRS has filed a petition for certification with the New Jersey Supreme Court. However, as it stands now, the Appellate Division appears to have expanded the employee protections afforded under the LAD. An employer cannot take adverse employment steps against a divorcing or divorced employee because of anticipated disruption expected from the divorce.•