Justices Consider Whether Divorce Can Justify Firing

Michael Booth, New Jersey Law Journal

December 1, 2015

Lawyers argued before the New Jersey Supreme Court on Dec. 1 over whether a town's rescue squad violated the state's Law Against Discrimination when it allegedly fired one of its employees because he was about to get a divorce.

The case involves a 17-year veteran of the Millville Rescue Squad, Robert 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. Miller claimed he was told that he was being fired because the divorce would be "ugly."

A squad's board of directors approved his termination, and said it was because of poor work performance. A trial judge dismissed the complaint, saying Smith failed to present a prima facie case of discrimination, but the Appellate Division reinstated the claim. The Supreme Court agreed to hear the squad's appeal.

"Management made a reasonable judgment that there was going to be an adverse impact on the workplace," said the squad's lawyer, Steven Gerber, adding that Smith's mother-in-law and two sisters-in-law also worked for the rescue squad.

"Mr. Smith's work performance also had been found wanting," said Gerber, of Wayne's Gonzalez Saggio & Harlan.

Justice Barry Albin asked if employers should be "permitted to engage in completely wrong assumptions about divorce."

Gerber said 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 raised the hypothetical situation of an employee's child marrying the chief executive officer of a business rival.

"The employer could do nothing about it," he said. "If they have to wait for something to happen, management could never make a decision."

Appellate Division Judge Mary Cuff, temporarily assigned, cited testimony that the squad's executive director, John Redden, said there would be "potential problems" with the divorce.

"That smacks of stereotype with no basis in fact," she said.

"This was a judgment on the impact on the workplace, not on divorce itself," Gerber replied.

Gerber said Smith had an affair with another female squad employee, and that other members had gotten divorces and had not been fired.

"There's an awful lot of dating going on in that workplace," said Justice Jaynee LaVecchia.

Smith's attorney, Haddonfield solo Mario Iavicoli, said the matter presented a clear case of discrimination.

"The plaintiff's position is that the defendant intends to terminate a person because that person intends to change his marital status from married to separated to divorced," Iavicoli said.

"That's a clear violation of the LAD," he said. "If it isn't, what would be?"

Iavicoli said Smith was told he could keep his job if he reconciled with his wife.

"That's an employer dictating social policy … and that's what the LAD prohibits," he said.

Iavicoli rejected the squad's argument that Smith's job performance also had been slipping. Smith, he said, received constant raises and, as director of operations, saved the squad "millions of dollars" through cost-cutting measures.

Albin asked if an employee could be fired for "expected hostile relationships."

"If there is disruption, that is always cause to terminate," Iavicoli said. "The anticipation part is a little tricky. You have to wait until that line is crossed."

Albin said the squad shouldn't wait until an incident occurred between Smith and his ex-relatives while responding to a "tragic accident."

"That would be yielding to stereotypes," Iavicoli replied.

The American Civil Liberties Union of New Jersey participated as amicus. Its deputy legal director, Jeanne LoCicero, urged the court to uphold the Appellate Division's ruling.

"You should affirm the broad role of the LAD," LoCicero said. "You have to wait until something actually happens" before a person can be terminated based his personal relationships.

Albin again raised the hypothetical scenario of Smith working at an accident scene with his former relatives and a dispute occurring between them.

"And the scalpels are flying in the wrong direction," added Justice Anne Patterson.

"You expect people to act like adults," LoCicero said.

Smith was a 17-year veteran of the rescue squad, according to court records. He spent seven years as a volunteer and 10 years as a paid employee, eventually becoming director of operations.

Smith and his now ex-wife separated Jan. 1, 2006. He told Redden about the separation and how he also had an affair with another employee, according to court documents.

In February of that year, Redden asked him if there was any chance of reconciliation. Smith testified at his 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 the termination and chalked it up to poor work performance, court documents said.

Cumberland County Superior Court Judge Richard Geiger dismissed the suit, saying Smith's firing was because of his conduct or expected conduct, and that it didn't rise to the level of a marital status discrimination claim.

Appellate Division Judges Carmen Alvarez and Mitchel Ostrer reinstated the claim, citing the LAD's preclusion of bias based on "marital status."

Since the LAD does not define the term, "we interpret 'marital status' to encompass the state of being divorced," Alvarez and Ostrer said. "Divorce unquestionably affects marital status.

"Particularly given modern trends, it would significantly undermine the marital status protection if an employer could freely discriminate against persons who choose to divorce," they said.

"MRS terminated plaintiff because of stereotypes about divorcing persons-among other things, they are antagonistic, uncooperative with each other, and incapable of being civil or professional in each other's company in the workplace," the judges said.

The appeals court took note of statistics from the Centers for Disease Control and Prevention about the high rate of divorce in the United States.

"The apparent 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," Alvarez and Ostrer said.