An Affair To Forget

A rescue squad employee made out a discrimination claim according to a decision of the New Jersey Supreme Court affirming the Appellate Division.

From the court’s headnotes

 In this appeal, the Court considers whether the prohibition in the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against discrimination based on marital status extends to a person who has separated from their spouse and is in the process of divorce. The Court then determines whether, on defendant’s motion for an involuntary dismissal of the complaint, plaintiff presented a prima facie case of discrimination under the LAD where he alleged that defendant terminated his employment based on his separation and impending divorce from his co-employee wife, after he began an extra-marital affair with a colleague.

In February 2006, plaintiff Robert Smith, who was then employed as director of operations of defendant Millville Rescue Squad, was terminated from employment. This occurred shortly after he informed his supervisor that he was engaged in an affair with a volunteer worker, and that he and his wife, who also worked for the rescue squad, were separated and about to commence divorce proceedings.

Plaintiff testified that, when he informed his supervisor about the affair, the supervisor stated that he could not promise that it would not affect plaintiff’s job. At a subsequent meeting in February 2006, plaintiff’s supervisor stated that he believed that plaintiff and his wife would have an “ugly divorce.” The supervisor further stated that he had to take the matter to the rescue squad’s board. At the meeting, the board decided to terminate plaintiff’s employment. The minutes of the meeting referred to a corporate restructuring, plaintiff’s poor performance for some time, and the failure of efforts to remediate plaintiff’s performance, as grounds for the termination. Defendant terminated plaintiff’s employment on the following day.

Holding

… plaintiff presented a prima facie case of marital-status discrimination by direct evidence. The facts that plaintiff asserted demonstrate that he was discharged based, in significant part, on his employer’s stereotypical view of divorcing parties, and the presumed impact that plaintiff’s divorce would have on the work performance of plaintiff and others. The evidence further demonstrated that defendants were not enforcing an anti-nepotism policy because they had permitted plaintiff and his wife to work together for a number of years. The trial court improperly utilized the McDonnell-Douglas test to assess plaintiff’s proofs, because it is applicable only where the claim is based on circumstantial evidence.

(Mike Frisch)