Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In New Jersey, Can I Be Fired From My Job Because I Am Getting A Divorce?

In 2002, the Center for Disease Control and Prevention, Cohabitation, Marriage, Divorce and Remarriage found that over one-fourth of women divorce within ten years of their first marriage. Additionally, the Center found that if separation was also considered, the percentages increased to over thirty percent after ten years, and almost fifty percent after twenty years. Since 2002, the number of people getting divorced has steadily been on the rise. Because of the high divorce rate, people have become more accepting of divorce. Simply stated, it does not carry a stigma like it used to back in the day. Yet, even though divorce almost seems normal in our society, as a New Jersey divorce attorney I am well aware some people are still intolerant and believe in the stereotypes associated with it. For instance, in the New Jersey Appellate Division case of Smith v. Millville Rescue Squad, someone was fired from his job because of his divorce. Is that even allowed might you ask? Let’s explore.     

In the case, Mr. Smith worked for the Millville Rescue Squad (MRS) for seventeen years. He started off as a certified emergency medical technician, but was later promoted to the director of operations. Mr. Smith reported directly to Mr. Redden, MRS’s executive director, while employed at the company.

In addition to just work, Mr. Smith met his future wife at MRS. Yet, in January 2006 Smith and his wife separated due to the fact that he began to have an affair with another employee of MRS. Mrs. Smith discovered the affair, in addition to the MRS management. Upon the news getting out, Smith went to talk with Redden to fill him in on what was going on. Smith assured his boss that his work would not be affected and even pointed out the fact that his new girlfriend had voluntarily resigned to avoid further issues in the workplace.

One month later in February 2006, Redden called Smith into his office to let him know that he was being let go. He mentioned that he had given him time to reconcile with his wife, but since it did not happen, the possibility of an ugly divorce was grounds for termination. He also mentioned a few other reasons for firing Smith, including that his position was being terminated all together. However, right after he was fired, his wife and a male employee assumed the position of operations director. In September 2006, Smith and his wife were issued a final judgment of divorce. Additionally, Smith married the woman he had the affair with in 2008.  

Frustrated with his termination though, Smith petitioned the court alleging that he was fired because of his marital status in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-12(a). The trial court held that he failed to present evidence that he was fired because of his marital status. Particularly, the court analyzed the issue based on a four-prong test. In order for Smith to prove his termination was unlawful pursuant to LAD, he had to prove: (1) he was a member of a protected class; (2) he was performing his job at the level his boss expected; (3) he was still fired; and (4) he was replaced by someone not in the same protected class or that he was fired because of marital discrimination. The trial court stated that Smith failed to meet prong two and four, and therefore entered a judgment against him. Smith appealed.

On appeal, the court looked first to the scope of the LAD statute. LAD states that “it shall be unlawful employment practice, or as the case may be, an unlawful discrimination…for an employer, because of the marital status of any individual to refuse to hire or employ or to bar or to discharge such individual.” However, the court noted that the statute did not define marital status and therefore had to interpret the phrase on its own. It decided to liberally read LAD and reject the trial court’s interpretation that marital status only means either being married or unmarried. Therefore, the New Jersey Appellate Division interpreted marital status to include being divorced. The court looked to a series of statistics which revealed that divorce was steadily on the rise and determined that clearly since LAD was a remedial statute, divorced parties were afforded protection as well.   

Additionally, the New Jersey Appellate division looked at the totality of the circumstances and found that Smith did establish a case of discrimination based on his anticipated divorced. Not only did Smith reveal to the court that Redden fired him because of the potential ugly divorce to come, but also that it was Redden’s sole decision to fire him. The court found that MRS fired Smith because of stereotypes about divorcing persons such as that they are uncooperative and unprofessional in the workplace. While the court noted that MRS could have fired Smith had he become uncooperative or unprofessional, it could not fire him based on a mere stereotype.

As my divorce and family law firm always keeps a keen eye on any developments in New Jersey law, please never hesitate to contact my office if you have any questions that may pertain to your situation.  Thank you.