Can I Be Fired Because I Am Getting Divorced?

No. Pursuant to New Jersey’s Law Against Discrimination, an employer may not chastise, obstruct promotions or terminate an employee simply because they are getting divorced when it has no impact on the quality of their work product or adversely effects the atmosphere at their place of employment. About 10 years ago, an employee was fired because his supervisor was concerned that he was about to begin an “ugly divorce.” This week, the New Jersey Supreme Court handed down a decision clearly stating that it is discriminatory to fire an employee based upon their marital status.


As an attorney for the past 20 years with a law firm in my hometown of East Brunswick, New Jersey, any and all new decisions are emailed to all lawyers at my office on a daily basis. This ensures that we stay on the cutting edge of divorce or family law in order to best protect our clients.

In Smith v. Millville Rescue Squad, the Supreme Court of New Jersey reviewed if the Law Against Discrimination’s, New Jersey Statute 10:5-1 to –42, prohibition of discrimination based on marital status also covered a person who has separated from their spouse, and is currently in the process of getting a divorce. Then the Supreme Court of New Jersey reviewed whether Robert Smith established a prima facie case of discrimination under the Law Against Discrimination statute by claiming that his employer, the Millville Rescue Squad, fired him because his separation, and impending divorce from his wife who also worked at the Millville Rescue Squad, because he started an affair with another colleague. The Supreme Court of New Jersey held that the term “marital status” should be broadly interpreted to cover people who are married or single, and those people who are transitioning from one of these statuses to the other, employees who never got married, or who are separated, engaged, in the process of getting a divorce, or recently widowed.

Robert Smith was fired from his job in February 2006. At the time, he was employed as the director of operations of the Millville Rescue Squad. His termination came right after he told his supervisor that he had started an affair with one of the volunteer workers, and that he and his wife were separated and about to get divorce. Robert testified that his supervisor stated that he could not promise that his job would not be affected. At a later meeting that month, his boss told him that he thought an “ugly divorce” would follow. He then informed Robert that at a rescue squad board meeting, the board made the decision to fire him. The board referenced a corporate restructuring, Robert’s poor work performance, and the failure of efforts to fix his performance as reasons for terminating him. He was fired the next day.

Robert filed a lawsuit against the Millville Rescue Squad, and his supervisor, and argued claims under the New Jersey Constitution, and the Law Against Discrimination for a wrongful termination based on his sex and marital status, in addition to wrongful discharge under the common law. During testimony, he informed the court about the comments his supervisor made after he told him about the separation and forthcoming divorce. He also testified that he had never once received formal discipline, and had even been promoted twice and received annual raises. Furthermore, he stated that the divorce was amicable, and that he and his former wife continued to have a good relationship.

At the end of the case, the trial court granted the Millville Rescue Squad’s motion for involuntary dismissal. The court found that Robert failed to provide proof that he was fired because he was either married or unmarried, or because was having an affair, or that any employees were being treated differently because of their marital status. The judge found that the evidence suggested that he was fired because the management was worried about the effects of a likely acrimonious divorce.

On appeal, the New Jersey Appellate Division reversed the trial court’s dismissal of Robert’s marital status discrimination claim. The appellate panel understood the definition of “marital status” to include the statuses of being separated and involved in a divorce proceeding. Based on the supervisor’s comments, the appellate panel concluded that Robert did actually provide evidence that he was fired because of the negative stereotypes about divorcing employees, and that Robert had presented a prima facie case of discrimination. A review by the Supreme Court of New Jersey followed.

The Supreme Court of New Jersey explained that the Law Against Discrimination, or New Jersey Statute 10:5-1 to –42, states that certain acts, like firing an employee, may constitute an illegal employment practice if predicated on factors like sex, race, marital status, age or national origin. The statute, however, does not define what “marital status” explicitly means. Because there was no legislative history identifying the boundaries and scope of the protections, the term “marital status” affords an employee, the Supreme Court of New Jersey had to identify and implement the Law Against Discrimination’s legislative intent.

The Law Against Discrimination’s stated goals and purposes suggest that a court should interpret marital status to mean more than just the status of being married or single. The remedial purpose of the statute, is consistent with a broader interpretation, and promotes the law’s goals of ending discrimination in the workplace. A broad interpretation also prevents an employer from resorting to antiquated stereotypes to justify firing employees who never got married, or who are separated, engaged, in the process of getting a divorce, or recently widowed.

The Supreme Court of New Jersey held that the term “marital status” should be understood to cover people who are married or single, and those people who are transitioning from one of these statuses to the other. This interpretation would cover basic decisions made by an employee during his or her life, like those involved with divorce or marriage. No one should have to be afraid that such an event would cause them to lose their job, or a promised promotion. Furthermore, this broad interpretation will not in any way circumvent or obstruct an employer’s legitimate business judgment or polices regarding his or her workers. Simply stated, a boss can still discipline or fire an employee who is neglecting his or her employment responsibilities. The Supreme Court of New Jersey’s interpretation merely prevents an employer from using stereotypes about divorce or separation in assessing an existing or potential employee that bears no real relation to that employee’s work performance.

An employee can try to prove a Law Against Discrimination violation by either circumstantial or direct evidence of discrimination. If the allegation is predicated on circumstantial evidence, the claimant has the burden to prove, by a preponderance of the evidence, the four-factor test enumerated in the 1973 United States Supreme Court case of McDonnell Douglas Corp. v. Green. The employer can try to rebut the presumption of discrimination by providing proof of a genuine, non-discriminatory basis for firing that employee. If the employer successfully rebuts that presumption, then the burden shifts back to the employee to prove that the employer’s offered reason for termination is really a pretext for discrimination.

Applying the afore-mentioned standard, the Supreme Court of New Jersey found that Robert had indeed established a prima facie case of discrimination based on marital-status. The facts of the case showed that he was fired, in large part, because of his supervisor’s stereotypical belief about divorcing couples, and the assumed impact the divorce would have on Robert’s work performance and others in the workplace. Furthermore, the trial court inappropriately utilized the McDonnel-Douglas test to analyze Robert’s evidence, because that test is only appropriate when the claim is predicated on circumstantial evidence. Therefore, the Supreme Court of New Jersey affirmed the decision of the New Jersey Appellate Division.

If you or a loved one has any questions regarding New Jersey divorce law, your inquiry is invited.