In Smith v. Millville Rescue Squad, et al., Docket No. A-1717-12T3, 2014 N.J. Super. Unpub. LEXIS 1548 (App. Div. June 27, 2014), the Appellate Division, while broadly interpreting the scope of the LAD’s protections, in view of the statute’s remedial purpose, reversed the trial court’s dismissal of Smith’s marital status-based LAD claim.
Smith was married to a co-worker for several years without incident or prohibition by the Millville Rescue Squad (“Millville”). Smith and his wife, however, separated in January 2006 after Smith had an extramarital affair with another Millville employee. In February 2006, Smith’s employment was terminated. The reason for Smith’s termination was in dispute; ultimately the Appellate Division held that Smith established a prima facie case of discrimination through direct evidence of discrimination based upon marital status:
Plaintiff testified that Redden told him he would be terminated because he and his wife were going to go through an ugly divorce. Although Redden apparently required the Board’s approval, giving plaintiff favorable inferences, the decision was Redden’s.
Id. at 19. The Appellate Division rejected the notion that Smith was “terminated not because of an imminent divorce, but because of the impact the divorce was expected to have on his ability to perform in his job.” Id.
Interpreting the scope of LAD broadly, the Appellate Division rejected the trial court’s narrow interpretation that “marital status” involved only being married or unmarried. As the Appellate Division explained, “marital status,” encompasses the state of being divorced because divorce unquestionably affects marital status.
Ultimately, the Court found that Millville terminated Smith “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. Redden fired plaintiff to avoid the feared impact of an ‘ugly divorce’ on the workplace; and because plaintiff failed to reconcile with his wife over an eight-month period.” Id.
Clearly, the LAD does not bar an employer from taking employment action against a divorcing employee who actually demonstrates antagonism, incivility, or lack of professionalism. However, here, Millville did not respond to any actual proved conduct; rather, it acted on a fear, apparently based on stereotype, that such conduct would follow. The Court explained that Millville’s assumption that a divorcing person would be unable to perform his or her job is functionally the same as an employer's prohibited assumption that a female worker cannot perform certain physical labor, or a worker of a certain age lacks the energy to complete assigned tasks.
The Bottom Line. Employers are encouraged to carefully document any and all performance issues. In assessing discrimination and wrongful termination cases like these, the Courts will carefully scrutinize the employer’s reason for termination and, without clear documentation that actual performance was truly the cause, the Court may agree with a plaintiff that the real reason for termination was an unlawful discriminatory one.
 Smith’s case was involuntarily dismissed under Rule 4:37-2(b); defendant was granted judgment under Rule 4:40-1. This means that Smith’s case was dismissed at trial after Smith had presented his case but before Millville presented its defense.