Alan Schorr’’s Employment Case of The Week ending June 27, 2014

Smith v. Millville Rescue Squad, A-1717-12T3 (unpublished) (N.J.App.Div. June 27, 2014)

This week we have a case in which the Appellate Division was asked to decide whether taking action against an employee because he was going through a divorce violates the New Jersey Law Against Discrimination’s prohibition against discrimination on the basis of “marital status”. In Smith v. Millville Rescue Squad, the Court confirmed that divorce is, in fact, a marital status covered by the NJLAD.

Robert Smith was the Director of Operations for the Rescue Squad and had worked with them in a variety of capacities for 17 years. His wife was also a long-time employee of the squad, as was his mother-in-law and his wife’’s two sisters. Mr. Smith and his wife separated due in part to a romantic affair that Mr. Smith was involved in with another MRS employee. That employee resigned when the affair was discovered. There was testimony that many MRS employees had intimate relationships, some extramarital, including Mr. Smith’s wife. This place reminds me of Grey’’s Anatomy.

Shortly thereafter Mr. Smith was advised he was terminated because he and his wife were going to go through “an ugly divorce”. Mrs. Smith was not terminated. Mr. Smith sued, alleging violation of the NJLAD due to marital status as well as gender. The case went to trial where it was involuntarily dismissed because the Court held that the plaintiff had only demonstrated that he was terminated because of anticipated bad conduct arising from the divorce but that such a reason did not give rise to a “marital status” discrimination claim.

The Appellate Court reversed, doing a very thorough analysis of legislative history and other jurisdictional law and concluding that “marital status” encompasses the state of being divorced. The Court pointed out that one-fourth of women divorce within ten years of their first marriage and that when separation is also considered, the percentages increase to 50% after twenty years. The Court held that since the employer permitted married couples on its payroll but not divorcing couples, the employment action would fall within the reach of the LAD.

The Court also briefly addressed the gender discrimination claim, but here, in my opinion, the Court made a silly argument. Mr. Smith had argued that since the employer retained his wife but not him, there was evidence that the decision to terminate him must be gender-based, since his wife was also about to go through an ugly divorce. The Court could have come up with a lot of logical reasons why Mr. Smith could have been selected. For example, the employer decided that one of them had to go, and they felt that Mrs. Smith was more valuable. But no. Instead, the Court employed a reverse discrimination analysis and points out that Mr. Smith’s bosses were men, and that he did not demonstrate that MRS was the “unusual employer” who favors men over women.

I have ranted before about the ridiculousness of the reverse discrimination analysis (see my article from April 14, 2014 on Cappella v. City of Atlantic City). This case demonstrates why the reverse discrimination analysis defies logic. Here we have two managers, married to each other, working for the same company. Both long-term, valued employees. They go through a divorce and the employer thinks the divorce will be ugly, so he decides to fire one of them. Based upon this ruling, if the employer had chosen to fire the wife instead of the husband, she would have a gender discrimination claim because she does not have to meet the burden of demonstrating that the employer is an “unusual employer” who prefers men over women. So she could sue but he can’t over exactly the same situation. How does that make sense? The employer is already the unusual employer because they allow a soap opera of an employment culture to exist and then fires people because those romantic affairs blow up.

In any event, Mr. Smith will now have his day in Court on the marital status discrimination and we now have a nice and well-explained decision supporting the protection of divorcees and divorcing individuals under the LAD. We will have to wait a while on the reverse discrimination claims until the right case can come before the Supreme Court.

Plaintiff’s Counsel: Mario A, Iavicoli.

Defendant’s counsel: Steven Gerber and Ola A. Nunez, Gonzalez, Saggio & Harlan, LLP.

Appellate Judges: Alvarez and Ostrer.