NJ SUPREME COURT TO CONSIDER WHETHER A DIVORCE CAN JUSTIFY A FIRING

183772480A divorce can take an emotional toll on both parties involved. Issues such as child support, parenting time and alimony are just a few where parties may disagree. As with everyone, the one thing you need is your job, but that may now change.

On December 1st lawyers argued before the New Jersey Supreme Court over whether a town’s rescue squad violated the state’s Law Against Discrimination (“LAD”) when it allegedly fired one of its employees because he was about to get a divorce.

The matter involves a seventeen-year veteran of the rescue squad, Smith, who alleged in a complaint that he was fired after he informed his superior that there was no chance of reconciliation with his wife. Smith spent more than seven years as a volunteer and ten years as a paid employee, eventually becoming director of operations.

Smith and his ex-wife separated January 1, 2006. Smith told his superior, Redden, about the separation and how he also had an affair with another employee. In February 2006, Redden asked Smith if there was any chance of reconciliation. Smith testified at trial that Redden then told him he was being fired because he would be going through an ugly divorce. The squad’s board of directors approved Smith’s termination, and said it was because of poor work performance.

The complaint filed on behalf of Smith was dismissed by the Trial Court for failure to present a prima facia case of discrimination, but the Appellate Division reinstated the claim. Now the Supreme Court is hearing the matter.

In the Appellate Division Judge Cuff, citing testimony of the squad’s executive director, Redden, that there would be potential problems with the divorce, stated that this smacks of a stereotype with no basis in fact. Judge Alvarez and Judge Oster reinstated the claim citing the LAD’s preclusion of bias based on marital status.

The squad’s lawyer, Gerber, stated that management made a reasonable judgment that there was going to be an adverse impact on the workplace. Justice Albin inquired if an employer should be permitted to engage in completely wrong assumptions about divorce. Gerber stated that the squad was not basing its decision on stereotypes about divorce, but rather on the possible problems that could occur if Smith divorced his wife and then continued to work alongside her family.

Gerber stated that this was a judgment on the impact on the workplace, not on the divorce itself. Gerber stated that Smith had an affair with another female squad employee and that other members of the squad had gotten divorces and had not been fired.

Smith’s attorney, Iavicoli, stated that Smith’s position is that the squad intended to terminate a person because that person intended to change his marital status from married to separated to divorced. Iavicoli stated that squad clearly violated the LAD. Iavicoli stated that Smith was advised that he could keep his job if he reconciled with his wife. Iavicoli stated that is an employer dictating social policy and that is what the LAD prohibits.

Justice Albin inquired if an employee could be fired for expected hostile relationships. Iavicoli stated that if there is a disruption that is always cause to terminate. Iavicoli stated that the anticipation part is a little tricky and that you have to wait until that line is crossed. Justice Albin stated that the squad should not have to wait until an incident occurred between Smith and his ex-relatives while responding to a tragic event.

The American Civil Liberty Union of New Jersey participated and urged the court to uphold the Appellate Division ruling and affirm the broad roll of the LAD. The Civil Liberty Union argued that you have to wait until something actually happens before a person can be terminated based on his personal relationships.

The 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 decision of the NJ Supreme will have an enormous impact in the workplace environment. Schedule a consultation with the attorneys at Gale & Laughlin to discuss any matrimonial or divorce questions that you may have.

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