The New Jersey Law Against Discrimination (NJLAD) protects employees from discrimination based on a wide range of factors, including marital status. Courts have generally held that this means employers cannot discriminate against an employee solely because that employee is unmarried, married, divorced, or separated. Last year, the New Jersey Supreme Court considered whether this provision also applies to an employee who is in the process of getting a divorce. In a 6-0 decision, the court ruled that it does apply. Smith v. Millville Rescue Squad, 139 A.3d 1 (N.J. 2016). While the court recognized that a divorce case can be chaotic and disruptive, it held that an employer cannot fire a worker if their divorce case has no direct impact on their job or their job performance.
The NJLAD prohibits discrimination on the basis of “marital status, civil union status, [or] domestic partnership status,” among many other factors. N.J. Rev. Stat. § 10:5-12(a). It does not, however, define the term “marital status.” The court’s opinion in Smith reviews other state antidiscrimination statutes, finding that the states that provide a definition of “marital status” differ considerably in the scope of their definitions. Hawaii, for example, defines it simply as “the state of being married or being single,” while Colorado’s much broader definition includes being “in the process of having a marriage or civil union dissolved or declared invalid.” Smith, 139 A.3d at 10, quoting Haw. Rev. Stat. § 378-1 and Colo. Rev. Stat. § 24-34-301(4.5).
The plaintiff in Smith worked for the defendant for about 17 years as a paramedic and emergency medical technician (EMT). He was a volunteer for the first seven years and a paid employee for the following 10 years, from 1996 to his termination in 2006. His wife also worked for the defendant during this time. According to the court’s opinion, the plaintiff “commenced an extramarital affair with [a] volunteer” under his supervision in 2005. Smith at 5. The volunteer ceased working for the defendant, but the affair reportedly continued, “leading to irreconcilable discord between plaintiff and [his wife].” Id.