Robert Smith v. Millville Rescue Squad(074685) , 225 N.J. 373 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Robert Smith v. Millville Rescue Squad (074685) (A-19-14)
Argued December 1, 2015 – Decided June 21, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
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.
Plaintiff commenced suit against the rescue squad and his supervisor, asserting claims under the LAD and
the State Constitution for wrongful discrimination on the basis of sex and marital status, and common law wrongful
discharge. Plaintiff testified at trial to the statements that his supervisor had made after plaintiff told him about his
separation and impending divorce. Plaintiff also testified that he was never subject to formal discipline, and that he
was promoted twice and had received annual raises. Plaintiff further testified that he and his wife obtained a divorce
several months after they commenced proceedings, the divorce was amicable, and he continues to have a good
relationship with his former wife.
At the conclusion of plaintiff’s case, the court granted defendant’s motion for an involuntary dismissal. On
plaintiff’s claim of marital-status discrimination under the LAD, the court found that plaintiff had failed to present
evidence that he was terminated because he was either married or unmarried, or because he was having an affair, or
any evidence that employees were treated differently based on their marital status. The court found that plaintiff’s
proofs showed that he was terminated because management was concerned about the likelihood of an acrimonious
divorce, which the court held did not give rise to a marital-status discrimination claim.
The Appellate Division reversed the dismissal of plaintiff’s marital-status discrimination claim. The panel
interpreted “marital status” to include the states of being separated and involved in divorce proceedings. The panel
determined that, based on the comments by plaintiff’s supervisor, plaintiff presented evidence that he was
terminated based on negative stereotypes that defendant held about divorcing employees, and that plaintiff had
established a prima facie case of discrimination. This Court granted certification. 220 N.J. 42 (2014).
HELD: The protection that the LAD affords against discrimination based on marital status is not limited to the state
of being single or married. The LAD also prohibits discrimination against a prospective or current employee based
on their status as separated, in the process of divorce, or divorced. The evidence that plaintiff presented at trial
suggests that defendant’s animus toward divorcing persons, based on stereotypical views, affected the decision to
terminate plaintiff’s employment, and therefore created an inference of discrimination due to defendant’s marital
status. The trial court erred in finding that plaintiff failed to establish a prima facie case of marital-status
discrimination in employment under the LAD.
1. The LAD declares certain actions, including the termination of an employee, to constitute an unlawful
employment practice if based on factors such as race, sex, marital status, national origin, and age. “Marital status” is
not defined in the Act, and there is no legislative history which identifies the scope and boundaries of the employee
protection which this term affords. Therefore, the Court must identify and implement the legislative intent of the
LAD. (pp. 14-18)
2. The stated purpose and goals of the LAD strongly suggest that the Court should consider marital status to mean
more than the state of being single or married. A broader interpretation is consistent with the remedial purpose of
the statute, and advances its goal of eradicating discrimination in the workplace. A liberal interpretation would also
prevent employers from resorting to invidious stereotypes to justify the discharge of employees who never married,
or who are engaged, separated, involved in divorce litigation, or recently widowed. (pp. 18-20)
3. “Marital status” should be interpreted to include individuals who are single or married, and those who are in
transition from one of these states to another. This interpretation covers basic decisions that an employee makes
during his or her lifetime such as those involved in marriage or divorce, and an individual should not fear that such
events will also trigger a loss of employment, or a promised promotion. This interpretation does not interfere with
an employer’s legitimate business judgment and policies regarding its workforce, including the ability to discipline
or terminate an employee who is inattentive to his job responsibilities. Our interpretation likewise does not disturb
settled precedent harmonizing the LAD and anti-nepotism policies. Our construction of the Act prevents an
employer from resorting to stereotypes in its assessment of a potential or existing employee that bear no relation to
the employee’s performance in the workplace. (pp. 22-23)
4. An employee may attempt to prove a violation of the LAD through either direct or circumstantial evidence of
discrimination. If the claim is based on circumstantial evidence, the plaintiff must prove, by a preponderance of the
evidence, the four elements of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
employer can seek to rebut the presumption of discrimination with evidence of a legitimate, non-discriminatory
reason for the action taken. The burden then shifts to the employee to show that the employer’s proffered reason
was a pretext for discrimination. (pp. 24-27)
5. Upon review of a motion for involuntary dismissal under Rule 4:37-2(b), or a motion for judgment under Rule
4:40-1, the Court applies the same standard that a trial court must use. Under that standard, if, accepting as true all
evidence which supports the position of the opponent of the motion, and according him all reasonable inferences
from the evidence, reasonable minds could differ, the motion must be denied. The motion should be granted only if
no rational juror could conclude that plaintiff marshalled sufficient proof to demonstrate a cause of action. (pp. 28-
29)
6. Under this standard, 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. (pp. 29-31)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
2
SUPREME COURT OF NEW JERSEY
A-19 September Term 2014
074685
ROBERT SMITH,
Plaintiff-Respondent,
v.
MILLVILLE RESCUE SQUAD and
JOHN REDDEN,
Defendants-Appellants.
Argued December 1, 2015 – Decided June 21, 2016
On certification to the Superior Court,
Appellate Division.
Steven Gerber argued the cause for
appellants (Gonzalez Saggio & Harlan,
attorneys; Mr. Gerber, Mary P. Gallagher,
and Ola A. Nunez, on the briefs).
Mario A. Iavicoli argued the cause for
respondent.
Jeanne M. LoCicero argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Ms. LoCicero, Mr.
Barocas, and Alexander R. Shalom, on the
brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal addresses the scope of the marital status
protection afforded to employees by the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42. In this appeal,
1
plaintiff Robert Smith was terminated from his position as
operations director of a rescue squad soon after he revealed
that he and his co-employee wife were separated, would not
reconcile, and were about to initiate divorce proceedings. We
hold, as did the Appellate Division, that marital status is not
limited to the state of being single or married. Rather, the
LAD also protects all employees who have declared that they will
marry, have separated from a spouse, have initiated divorce
proceedings, or have obtained a divorce from discrimination in
the workplace.
The LAD prohibits an employer from imposing conditions of
employment that have no relationship to the tasks assigned to
and expected of an employee. It also prohibits an employer from
resorting to stereotypes to discipline, block from advancement,
or terminate an employee due to a life decision, such as
deciding to marry or divorce. The LAD does not bar an employer
from making a legitimate business decision to discipline or
terminate an employee whose personal life decisions, such as a
marital separation or divorce, have disrupted the workplace or
hindered the ability of the employee or others to do their job.
However, an employer may not assume, based on invidious
stereotypes, that an employee will be disruptive or ineffective
simply because of life decisions such as a marriage or divorce.
2
We also determine that plaintiff presented sufficient
evidence from which a reasonable jury could find that the
employer harbored discriminatory animus against divorcing
employees and that this animus bore directly on the decision to
terminate plaintiff’s employment. The trial court therefore
erred when it dismissed the complaint at the close of
plaintiff’s case. We therefore affirm the judgment of the
Appellate Division and remand the matter to the trial court for
further proceedings.
I.
We present the facts adduced at trial “accepting as true
all the evidence which supports [plaintiff’s position] and
according him the benefit of all inferences which can reasonably
and legitimately be deduced therefrom,” Verdicchio v. Ricca, 179
N.J. 1, 30 (2004) (citation omitted), as we must, given the
procedural posture of this case.
Plaintiff Robert Smith is a certified emergency medical
technician and paramedic. He was associated with defendant
Millville Rescue Squad (MRS), which provides medical
transportation and rescue services, for seventeen years,
initially as a volunteer member. Plaintiff assumed a paid
position in January 1996. At the time of his termination in
February 2006, plaintiff served as Director of Operations and
had held that position since June 1998. Plaintiff’s direct
3
supervisor was co-defendant John Redden, MRS’s Chief Executive
Officer. Plaintiff’s wife at the time, Mary, was also employed
by MRS, as were her mother and two sisters.
In early 2005, plaintiff commenced an extramarital affair
with an MRS volunteer, who was supervised directly by plaintiff.
In June 2005, Mary learned of plaintiff’s affair and reported it
to Redden. Shortly thereafter, plaintiff informed Redden of the
affair. During that conversation, plaintiff testified that
Redden told him that he could not promise that the affair would
not affect plaintiff’s job. According to plaintiff, on the
subject of plaintiff’s continuing employment with MRS, Redden
stated, “All depends on how it shakes down.”
The MRS volunteer left MRS on June 27, 2005, but the affair
continued, leading to irreconcilable discord between plaintiff
and Mary. On January 1, 2006, plaintiff moved out of the
marital home. On January 2, 2006, plaintiff informed Redden
that his marriage to Mary had collapsed. According to
plaintiff’s testimony, Redden thanked plaintiff for keeping him
informed and asked to be notified of any developments regarding
his marital status.
On February 16, 2006, plaintiff and Redden met again.
According to plaintiff’s testimony, Redden told plaintiff that
he did not think there was any chance of reconciliation between
plaintiff and Mary and that he believed there would be an “ugly
4
divorce.” Plaintiff testified that Redden informed him that if
there had been even the slightest chance of reconciliation,
Redden would not have to take the issue to the MRS Board of
Directors (the Board). According to plaintiff, Redden stated,
“You had eight months to make things right with your wife.”
Plaintiff also testified that Redden said he understood that
plaintiff had “to do what’s best for me.” Redden informed
plaintiff that he had to take the matter to the Board.
Plaintiff testified that Redden also indicated that he
should not have met with plaintiff and that he was only supposed
to meet with plaintiff the next day to terminate his employment.
Redden informed plaintiff that if anyone learned that they had
met, he would deny it.
Plaintiff asked Redden if he was being terminated because
he was the one who had the affair. Redden replied that if he
had to terminate plaintiff, it would be for one of four reasons.
Two of those reasons were elimination of plaintiff’s job because
of restructuring and “poor work performance[.]” Plaintiff
testified that he could not recall the other two reasons.
Later, plaintiff learned that the Board held a meeting on
February 7, 2006, which was attended by Redden. According to
meeting minutes, the Board decided to terminate plaintiff at
that meeting. The minutes contain discussions of an
“operational restructuring” that would negatively impact
5
plaintiff’s position. The minutes include a note that
plaintiff’s “work performance has been very poor for some time,”
and that “all efforts to remediate have failed.” The minutes
also state that “Redden feels there are no other options
available, and [plaintiff] must be terminated. The board
members told Chief Redden to seek advice of legal counsel before
taking this action and proceed as necessary with his
termination.”
When Redden informed plaintiff that the Board had decided
to terminate plaintiff and that the decision was final, Redden
gave plaintiff one day to resign before being fired. Plaintiff
said he would resign and left the meeting. Thereafter,
plaintiff decided not to resign, and he was fired the next day,
February 17, 2006.
Plaintiff testified that the MRS Employee Information
Manual (the Manual) provided that plaintiff was an “at will”
employee who could resign or be terminated at any time with or
without cause or notice. The Manual also included a sexual
harassment policy, but plaintiff testified that he did not
believe that having a relationship with a subordinate was a
problem because two other supervisors at MRS had dated employees
whom they supervised. The Manual also prohibited the use of
plaintiff’s business cell phone for personal purposes. Phone
records indicated that plaintiff frequently used his business
6
cell phone to speak with the MRS volunteer after work hours.
Plaintiff testified, however, that no one ever complained to him
about his cell phone use.
Plaintiff testified that other employees had divorced while
working at MRS, but he did not know of any other employee who
had been terminated because of a divorce. Furthermore, in
January 2001, he learned that Mary had an affair with an MRS
mechanic. Plaintiff considered the situation awkward but never
confronted the mechanic, and Mary was not terminated or
disciplined because of the affair.
Plaintiff also testified that, during the course of his
employment, he was never subject to formal discipline.
Plaintiff emphasized that he was promoted twice and received
raises annually, even after Redden learned of the affair. The
Manual called for regular performance evaluations, but plaintiff
testified that he only received one informal performance
evaluation, in October 2000, which was conducted by Redden and
which plaintiff characterized as positive.
Plaintiff’s friend and former colleague, Wally Maines,
testified that he had worked with plaintiff at MRS and that he
believed plaintiff was a good supervisor. Maines testified that
plaintiff had encountered some issues with scheduling, and that
Maines felt that he would have done a better job at scheduling
than plaintiff. Maines explained that on several occasions, he
7
informed Redden of the scheduling issues and Maines’ desire to
do plaintiff’s job. Redden, however, never implemented Maines’
suggestions and did not offer Maines the job. Maines
acknowledged that some of the scheduling issues could have been
caused by uncontrollable factors unrelated to plaintiff’s job
performance, and that some problems were caused by staff cuts
dictated by the Board and Redden. Maines also testified that,
after plaintiff was terminated, he had a conversation with
plaintiff in which plaintiff suggested he was fired because of
the prospect of an “ugly divorce.”
Following plaintiff’s termination, his position was filled
by two employees -- Mary and a male employee -- who served as
Co-Directors of Operations. Additionally, MRS appointed a male
employee to the newly created position of Chief Operating
Officer to supervise the co-directors of operations.
In March 2006, plaintiff and Mary filed for divorce. Their
divorce was finalized that September. Plaintiff testified that
the divorce was “amicable,” and not “messy,” and that he
continues to have a good relationship with Mary.
II.
On February 6, 2008, plaintiff filed a complaint against
MRS, Redden, and unnamed “John Does” who were involved in
plaintiff’s termination. The complaint asserted two counts:
wrongful discrimination on the basis of sex and marital status
8
in violation of the LAD, N.J.S.A. 10:5-1 to -42, and the State
Constitution (count one); and common law wrongful discharge
(count two). A trial commenced before a jury on the LAD claim.1
At the conclusion of plaintiff’s case, defendants filed a motion
for judgment pursuant to Rule 4:40-1 and a motion for
involuntary dismissal pursuant to Rule 4:37-2.
After hearing oral argument, the court issued a written
decision granting the motion for involuntary dismissal, thereby
dismissing plaintiff’s gender and marital status LAD claims. In
its decision, the court held that plaintiff was required to
establish four elements to succeed on his LAD claim: 1) that
plaintiff is a member of a protected class; 2) that he was
performing his job at a level that met his employer’s legitimate
expectations prior to his termination; 3) that he was fired
nevertheless; and 4) that he was replaced by someone not in the
same protected class, that non-protected-class workers with
comparable work records were retained, or that he was terminated
under circumstances giving rise to an inference of
discrimination.
The trial court found that plaintiff failed to satisfy
factor two, because he did not demonstrate that he was
1 The trial court dismissed plaintiff’s constitutional claims
and common law wrongful discharge claims prior to trial.
9
performing, or qualified to perform, the positions of Chief
Operating Officer and Co-Director of Operations,2 which were
newly created when he was terminated.
The court also found a failure of proof regarding factor
four. The court concluded that plaintiff had not shown that
non-protected workers with comparable work records were retained
or that he was replaced by someone not in the same protected
class, because the new positions were filled by Mary and two
men. The court also concluded that plaintiff had failed to show
that he was terminated under circumstances giving rise to an
inference of discrimination.
As to plaintiff’s marital-status-discrimination claim, the
court determined that plaintiff had failed to present any
evidence “that he was terminated because he was either married
or unmarried” or because he was having an affair, or “any
evidence that employees were treated differently based on
whether they were single, married, separated or divorced.”
Instead, the court found that plaintiff presented proof that he
was terminated because management was concerned about the
likelihood of an ugly or messy divorce, which the court held did
not give rise to a marital-status-discrimination claim.
2 The trial court refers to the Co-Director of Operations
position as “Director of Field Operations.”
10
Plaintiff appealed. The Appellate Division affirmed the
dismissal of plaintiff’s gender-discrimination claim but
reversed the dismissal of plaintiff’s marital-status-
discrimination claim. In reversing the dismissal of plaintiff’s
marital-status-discrimination claim, the panel noted that
plaintiff’s appeal raised the issue of the scope of the marital-
status protection under the LAD and interpreted “marital status”
to include the states of being divorced, engaged to be married,
separated, and involved in divorce proceedings. The appellate
panel found that Redden’s comment that plaintiff was being
terminated because he was going to go through an “ugly divorce”
constituted direct evidence of discrimination and that there was
evidence that plaintiff had been terminated because of negative
stereotypes about divorcing employees. Therefore, the panel
determined that plaintiff had established a prima facie case of
discrimination based on a change in the status of his
relationship “from married to soon-to-be-divorcing[.]”
We granted defendants’ petition for certification. Smith
v. Millville Rescue Squad, 220 N.J. 42 (2014).
III.
A.
Defendants limit their argument before this Court to
plaintiff’s marital-status-discrimination claim pursuant to the
LAD. They contend that the Appellate Division erred in finding
11
that plaintiff had established a prima facie claim of marital-
status discrimination. Defendants submit that plaintiff was
terminated not because of his marital status, but rather because
of the identity and situation of the person he was divorcing --
another MRS employee. They urge this Court to recognize an
employer’s right to exercise legitimate business judgment to
manage risk and resolve potential or perceived conflicts in the
workplace. In support of that argument, defendants compare the
employment action in this case to anti-nepotism policies, which
have been deemed lawful under the LAD. See Thomson v. Sanborn’s
Motor Express, Inc., 154 N.J. Super. 555, 560-61 (App. Div.
1977) (finding employer’s anti-nepotism policy did not violate
LAD’s protection against marital-status discrimination).
Defendants further argue that the Appellate Division
ignored the LAD’s plain language and adopted a broad definition
of “marital status” that expanded the scope of marital-status
discrimination. Relying on Thomson, supra, 154 N.J. Super. at
560, defendants argue that “marital status” has always been
defined to mean “either married or single.”
B.
Plaintiff argues that the Appellate Division did not expand
the definition of “marital status” in the LAD but simply defined
“marital status” according to its common usage to include the
categories of single, married, divorced, and separated.
12
Plaintiff maintains that there was no evidence that his divorce
would have an impact on the workplace and that he was terminated
based on stereotypes about divorcing persons in violation of the
LAD. Plaintiff further contends that the Appellate Division’s
holding is not inconsistent with prior decisions upholding the
legality of anti-nepotism policies.
Plaintiff argues that the Appellate Division properly found
that he presented sufficient evidence at trial to defeat
defendants’ motion for involuntary dismissal. In particular,
plaintiff contends that he established a prima facie case of
marital-status discrimination through his testimony that Redden
had told him that he was terminating plaintiff because he would
be going through an “ugly divorce,” and that if plaintiff had
reconciled with his wife, Redden would not have terminated him.
Plaintiff also emphasizes that he provided direct evidence of
discrimination; therefore, the trial court employed an erroneous
standard to evaluate his evidence, leading to an erroneous
decision to dismiss his marital-status LAD claim.
C.
Amicus curiae the American Civil Liberties Union of New
Jersey (ACLU-NJ) argues that the LAD reflects New Jersey’s
strong public policy against discrimination and must be
construed “to prohibit discrimination against individuals based
on invidious stereotypes.” ACLU-NJ urges the Court to interpret
13
the LAD as including “protection against stereotypes related to
an impending marriage or impending divorce.” In reaching this
conclusion, ACLU-NJ submits that the Court need not make “a
broad pronouncement” about whether the marital-status protection
prohibits an employment action based on the identity of a
complainant’s spouse. ACLU-NJ argues that the Court can find in
plaintiff’s favor without affecting the legality of anti-
nepotism policies by holding that employers who permit the
employment of spouses may not “thereafter discriminate against
those who are in the process of changing their marital status in
relation to another employee.”
IV.
The threshold issue before the Court is whether the LAD’s
prohibition against discrimination based on marital status
extends to a person who has separated from their spouse and is
in the process of obtaining a divorce. This is a question of
law that requires de novo review. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The LAD identifies several actions taken by an employer
against an employee or prospective employee as unlawful
employment practices. Those actions include the failure to
employ, the discharge of an employee, or the forced retirement
of an employee based on factors such as race, sex, marital
14
status, national origin, and age. The employment discrimination
provision of the LAD provides:
It shall be an unlawful employment
practice, or, as the case may be, an unlawful
discrimination:
a. For an employer, because of the race,
creed, color, national origin, ancestry, age,
marital status, civil union status, domestic
partnership status, affectional or sexual
orientation, genetic information, pregnancy,
sex, gender identity or expression, disability
or atypical hereditary cellular or blood trait
of any individual, or because of the liability
for service in the Armed Forces of the United
States or the nationality of any individual,
or because of the refusal to submit to a
genetic test or make available the results of
a genetic test to an employer, to refuse to
hire or employ or to bar or to discharge or
require to retire, unless justified by lawful
considerations other than age, from employment
such individuals[.]
[N.J.S.A. 10:5-12(a) (emphasis added).]
Marital status is not a defined term.
When the LAD was initially enacted in 1945, it protected
individuals from discrimination based on “race, creed, color,
national origin or ancestry.” L. 1945, c. 169, § 11.
Discrimination based on marital status first appeared in the LAD
as a prohibited employment practice in 1970, as part of a
comprehensive amendment to the LAD. See L. 1970, c. 80, § 14.
Marital status was not included in the bill when initially
introduced, see Assembly Bill No. 403, 194th Leg. (N.J. 1970),
but was added prior to the bill’s adoption by the Senate, Senate
15
Amendments to Assembly Bill No. 403, 194th Leg. (April 27,
1970). We have not identified any documents or statements
specifically addressing the inclusion of this category in the
1970 amendment. We note, however, that the inclusion of marital
status in the LAD coincided with the attention that
discrimination against women based on their marital status was
receiving, including the commencement of legal proceedings in
various courts challenging the employment practices of some
companies that conditioned hiring and continued employment for
women in certain positions on being single. See, e.g., Sprogis
v. United Air Lines, Inc., 444 F.2d 1194, 1196-97 (7th Cir.)
(affirming trial court determination that employer committed
unlawful employment practice when it discharged flight attendant
because of her marriage), cert. denied, 404 U.S. 991, 92 S. Ct.
536, 30 L. Ed. 2d 543 (1971).
New Jersey does not stand alone in barring discrimination
based on marital status. At least twenty states offer some form
of protection from discrimination based on marital status. See
Nicole Buonocore Porter, Marital Status Discrimination: A
Proposal for Title VII Protection, 46 Wayne L. Rev. 1, 15
(2000). Many states have not defined the term. See, e.g.,
Conn. Gen. Stat. § 46a-60; Del. Code Ann. Tit. 19, §§ 710, 711.
Other states define “marital status” in their anti-
discrimination statutes but are divided on the scope of the
16
marital-status protection. Compare, Haw. Rev. Stat. § 378-1
(defining marital status as “the state of being married or being
single”); Neb. Rev. Stat. § 48-1102(12) (defining marital status
as “the status of a person whether married or single”) with,
Colo. Rev. Stat. § 24-34-301(4.5) (“‘Marital status’ means a
relationship or a spousal status of an individual, including but
not limited to being single, cohabitating, engaged, widowed,
married, in a civil union, or legally separated, or a
relationship or a spousal status of an individual who has had or
is in the process of having a marriage or civil union dissolved
or declared invalid.”); D.C. Code § 2-1401.02(17) (“‘Marital
status’ means the state of being married, in a domestic
partnership, single, divorced, separated, or widowed and the
usual conditions associated therewith, including pregnancy or
parenthood.”); 775 Ill. Comp. Stat. 5/1-103(J) (“‘Marital
status’ means the legal status of being married, single,
separated, divorced or widowed.”); Minn. Stat. § 363A.03(Subd.
24) (“‘Marital status’ means whether a person is single,
married, remarried, divorced, separated, or a surviving spouse
and, in employment cases, includes protection against
discrimination on the basis of the identity, situation, actions,
or beliefs of a spouse or former spouse.”); Wash. Rev. Code §
49.60.040(17) (“‘Marital status’ means the legal status of being
17
married, single, separated, divorced, or widowed.”); Wis. Stat.
§ 111.32(12) (same).
To determine the scope and limits of the protection
afforded by the LAD to an employee’s marital status, we must
identify and implement the legislative intent. State v. Smith,
197 N.J. 325, 332 (2009). First, the Court must look to the
plain language of the statute as “the best indicator of that
intent[.]” DiProspero v. Penn, 183 N.J. 477, 492 (2005). “The
language of the statute must be construed in accordance with its
ordinary and common-sense meaning.” Saccone v. Bd. of Trs. of
the Police & Firemen’s Ret. Sys., 219 N.J. 369, 380 (2014)
(citations omitted). If the plain language of the statute is
clear and “susceptible to only one interpretation[,]” then the
Court should apply that plain-language interpretation.
DiProspero, supra, 183 N.J at 492 (citations omitted). If,
however, “there is ambiguity in the statutory language that
leads to more than one plausible interpretation, we may turn to
extrinsic evidence, ‘including legislative history, committee
reports, and contemporaneous construction.’” Id. at 492-93
(quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75
(2004)).
“Because this case involves the LAD, special rules of
interpretation also apply.” Nini v. Mercer Cty. Cmty. Coll.,
202 N.J. 98, 108 (2010). When confronted with any interpretive
18
question, we must recognize that “the LAD is remedial
legislation intended to ‘eradicate the cancer of discrimination’
in our society[,]” and should therefore be liberally construed
“in order to advance its beneficial purposes.” Id. at 115; see
also Saccone, supra, 219 N.J. at 381 (noting that statutes which
are “remedial in character” “should be liberally construed . . .
in favor of the persons intended to be benefited thereby”
(alteration in original) (quoting Geller v. Dep’t of Treasury,
53 N.J. 591, 597-98 (1969))); Lehmann v. Toys ‘R’ Us, 132 N.J.
587, 612 (1993) (“We emphasize that the LAD is remedial
legislation.”). “[T]he more broadly [the LAD] is applied, the
greater its antidiscriminatory impact.” Nini, supra, 202 N.J.
at 115 (second alteration in original) (quoting L.W. ex rel.
L.G. v. Toms River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 400
(2007)). Because discrimination is still a pervasive problem in
the modern workplace, even “novel arguments” advanced by victims
of workplace discrimination “require our utmost care and
attention in order that we may be steadfast in our efforts to
effectuate the Legislature’s goal of workplace equality[.]”
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 260 (2010).
Despite the absence of a definition of “marital status” or
legislative history demarcating the boundaries of this
protection, the stated purpose and goals of the LAD strongly
suggest that we should consider “marital status” as more than
19
the state of being single or married. A broader interpretation
is consistent with the remedial purpose of the statute, advances
the goal of “eradication ‘of the cancer of discrimination’ in
the workplace,” Bergen Commercial Bank v. Sisler, 157 N.J. 188,
199 (1999) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, cert.
denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)),
and prevents employers from resorting to invidious stereotypes
to justify termination of the employment of a never-married
employee, an engaged employee, a separated employee, an employee
involved in divorce litigation, or a recently widowed employee.
On the other hand, we need not disturb long-settled
precedent that holds that anti-nepotism policies do not violate
the LAD. Indeed, the distinction between legitimate business
decisions, such as anti-nepotism policies, and impermissible
marital-status discrimination, is illustrated by the two
opinions that have addressed the scope of the “marital status”
protection: Thomson, supra, 154 N.J. Super. 555, and Slohoda v.
United Parcel Service, Inc., 193 N.J. Super. 586 (App. Div.),
certif. denied, 97 N.J. 606 (1984).
In Thomson, supra, the defendant employer had a “policy
prohibiting the contemporaneous full-time employment of
relatives in the same department or terminal[.]” 154 N.J.
Super. at 557. The plaintiff was discharged pursuant to that
policy because her husband worked in the same terminal. Id. at
20
558. The plaintiff filed a complaint with the Division on Civil
Rights alleging marital-status discrimination in violation of
the LAD, and the Director found for the plaintiff. Id. at 559.
The employer appealed, and the Appellate Division reversed,
holding that an anti-nepotism policy does not violate the LAD
because the LAD’s “provisions were not designed to prohibit
employment discrimination based upon specific family
relationships[.]” Id. at 561. The appellate panel also held
that the employer’s failure to apply the policy consistently did
not affect the determination of the case. Ibid. The panel
noted, however, that a plaintiff may have a valid LAD claim if
she can show that “the uneven enforcement of the policy was
conspicuously marked by its consistent application solely for
married relatives as distinguished from other types of
relatives.” Ibid.
In Slohoda, supra, the plaintiff employee claimed that “he
was discharged because he was a married man who had a sexual
liaison with a woman other than his wife.” 193 N.J. Super. at
589. The plaintiff alleged that an unmarried employee would not
have been terminated for similar conduct, suggesting that “the
company policy was that any married management employee who
engaged in sexual activity out of wedlock would be discharged,
but that any unmarried management employee who engaged in sexual
activity would not be discharged.” Ibid. The Appellate
21
Division concluded that the plaintiff had a valid claim of
impermissible marital-status discrimination under the LAD,
because the plaintiff presented evidence that the “controlling
factor” in the plaintiff’s termination was his status as a
married person. Id. at 589-92. The appellate panel held that,
“if an employer’s discharge policy is based in significant part
on an employee’s marital status, a discharge resulting from such
policy violates [the LAD.]” Id. at 590.
We therefore conclude that marital status should be
interpreted to include those who are single or married and those
who are in transition from one state to another. This
interpretation embraces basic decisions an employee makes during
his or her lifetime. A person considering marriage or divorce
or confronting the death of a spouse should not fear that a
marriage ceremony, a divorce decree, or a funeral would trigger
a loss of employment or a promised promotion.
Moreover, the interpretation of marital status that we
adopt today does not interfere with an employer’s legitimate
business judgment and policies regarding its workforce. An
employer is not prevented from disciplining or terminating an
employee who is inattentive to his job responsibilities or whose
actions disrupt the efficient performance of critical tasks.
Rather, our interpretation prevents an employer from resorting
to stereotypes in its assessment of a potential employee or an
22
existing employee that bear no relation to the employee’s actual
performance in the workplace. Protecting those employees who
are single, married, or transitioning between those marital
states prevents an employer from engaging in commonplace
stereotypes that a single employee is not committed to his
career or that an engaged employee will be distracted by wedding
preparations, or that a divorcing employee will be distracted
from his job and even disruptive in the workplace, particularly
if the estranged spouse or the spouse’s friends and family are
employed by the same employer.
The interpretation we adopt today also does not require us
to disturb settled precedent harmonizing the LAD and anti-
nepotism policies. Employers are free to adopt anti-nepotism
policies, but they may not enforce them unevenly based on
marital status or any other protected class. Likewise, if an
employer chooses not to have an anti-nepotism policy, and
instead freely employs coworkers who are married or related to
one another, the employer may not thereafter discriminate
against a particular employee whose marriage dissolves.
Conflict may be inevitable among spouses and other family
members, but employers may not base their employment decisions
on stereotypes about how marital conflict will impact the
workplace.
V.
23
A.
The next issue we must address is whether the trial court
properly evaluated the proofs presented by plaintiff to support
his marital-status-discrimination claim. An employee who
commences an action seeking redress for an alleged violation of
the LAD “may attempt to prove employment discrimination by
either direct or circumstantial evidence.”3 Sisler, supra, 157
N.J. at 208 (citation omitted).
In order to establish a prima facie case of employment
discrimination by direct evidence, the plaintiff must produce
evidence “that an employer placed substantial reliance on a
proscribed discriminatory factor in making its decision to take
the adverse employment action[.]” A.D.P. v. ExxonMobil Research
& Eng’g Co., 428 N.J. Super. 518, 533 (App. Div. 2012)
(alteration in original) (quoting McDevitt v. Bill Good
3 A case established through direct evidence is also referred to
as either a “Price Waterhouse case” or a “mixed-motive case,”
and a case established through circumstantial evidence may be
referred to as a “McDonnell Douglas case” or a “pretext case.”
See Price Waterhouse v. Hopkins, 490 U.S. 228, 277-78, 109 S.
Ct. 1775, 1804-05, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,
concurring) (describing requirements for establishing prima
facie case of discrimination by direct evidence); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824,
36 L. Ed. 2d 668, 677 (1973) (describing requirements for
establishing prima facie case of discrimination by
circumstantial evidence); Fleming v. Corr. Healthcare Sols.,
Inc., 164 N.J. 90, 100-01 (2000) (holding that type of evidence
is determinative in whether case is “McDonnell Douglas or
‘pretext’ case” or “Price Waterhouse or ‘mixed motive’ case”).
24
Builders, Inc., 175 N.J. 519, 527 (2003)). Direct evidence of
discrimination may include evidence “of conduct or statements by
persons involved in the decisionmaking process that may be
viewed as directly reflecting the alleged discriminatory
attitude.” Fleming v. Corr. Healthcare Sols., Inc., 164 N.J.
90, 101 (2000) (citation omitted). Such evidence, “if true,
[must] demonstrate not only a hostility toward members of the
employee’s class, but also a direct causal connection between
that hostility and the challenged employment decision.” Sisler,
supra, 157 N.J. at 208. A plaintiff has presented direct
evidence of discrimination if the court determines that “a
statement made by a decisionmaker associated with the
decisionmaking process actually bore on the employment decision
at issue and communicated proscribed animus.” McDevitt, supra,
175 N.J. at 528 (citing Fakete v. Aetna, Inc., 308 F.3d 335, 339
(3d Cir. 2002)).
After the plaintiff sets forth “direct evidence of
discriminatory animus, the employer must then produce evidence
sufficient to show that it would have made the same decision if
illegal bias had played no role in the employment decision.”
Fleming, supra, 164 N.J. at 100 (quoting Jackson v. Ga.-Pac.
Corp., 296 N.J. Super. 1, 18 (App. Div. 1996), certif. denied,
149 N.J. 141 (1997)). In other words, once a plaintiff shows
that an employer had a discriminatory animus, the employer has
25
“only an affirmative defense on the question of ‘but for’ cause
or cause in fact.” Ibid. (quoting Jackson, supra, 296 N.J.
Super. at 18).
In order to establish a prima facie case of discrimination
through circumstantial evidence, the plaintiff must prove, by a
preponderance of the evidence, the four elements of the
McDonnell Douglas test. Sisler, supra, 157 N.J. at 209-10
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973)). A plaintiff alleging
discriminatory discharge must show: “(1) that plaintiff is in a
protected class; (2) that plaintiff was otherwise qualified and
performing the essential functions of the job; (3) that
plaintiff was terminated; and (4) that the employer thereafter
sought similarly qualified individuals for that job.” Victor v.
State, 203 N.J. 383, 409 (2010) (citing Clowes v. Terminix
Int’l, Inc., 109 N.J. 575, 596-97 (1988)).
After the plaintiff has established a prima facie case of
discrimination by circumstantial evidence, the employer is given
the opportunity to rebut the presumption of discrimination “with
admissible evidence of a legitimate, non-discriminatory reason
for its rejection of the employee.” Sisler, supra, 157 N.J. at
210. If the employer has succeeded in rebutting the presumption
of discrimination, the burden shifts back to the plaintiff to
establish by a preponderance of the evidence that the employer’s
26
proffered reason for the termination was in fact a pretext for
discrimination. Id. at 211.
The key difference between a direct-evidence case and a
circumstantial-evidence case is “the kind of proof the employee
produces on the issue of bias.” Starceski v. Westinghouse Elec.
Corp., 54 F.3d 1089, 1097 (3d Cir. 1995). Simply put, the
employee must set forth “more direct evidence” in a direct-
evidence case than in a McDonnell Douglas case involving
circumstantial evidence. Id. at 1096 n.4. “[D]irect evidence
of intentional discrimination is hard to come by[,]” so the
McDonnell Douglas test was developed to permit employees to
prove discrimination using circumstantial evidence. Sisler,
supra, 157 N.J. at 209-10 (quoting Price Waterhouse v. Hopkins,
490 U.S. 228, 271, 109 S. Ct. 1775, 1802, 104 L. Ed. 2d 268, 301
(1989) (O’Connor, J., concurring)).
In the rare case in which there is direct evidence of
discrimination, “the McDonnell Douglas analysis does not apply.”
A.D.P., supra, 428 N.J. Super. at 533 (citing Healey v.
Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996);
Snyder v. Norfolk S. Ry. Corp., 463 F. Supp. 2d 528, 534 (E.D.
Pa. 2006), aff’d, 271 Fed. Appx. 150 (3d Cir. 2008)); see also
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105
S. Ct. 613, 621-22, 83 L. Ed. 2d 523, 533 (1985) (stating, in
connection with claim under Age Discrimination in Employment
27
Act, 29 U.S.C.A. §§ 621 to 634, that “the McDonnell Douglas test
is inapplicable where the plaintiff presents direct evidence of
discrimination”). “[T]he production of direct evidence of
unlawful discrimination destroys ‘the . . . presumption of good
faith concerning . . . employment decisions which is accorded
employers facing only circumstantial evidence of
discrimination.’” Sisler, supra, 157 N.J. at 209 (quoting Price
Waterhouse, supra, 490 U.S. at 265-66, 109 S. Ct. at 1799, 104
L. Ed. 2d at 297-98 (O’Connor, J., concurring)). Accordingly,
“direct evidence of discriminatory animus leads not only to a
ready logical inference of bias, but also to a rational
presumption that the person expressing bias acted on it.”
Starceski, supra, 54 F.3d at 1097.
B.
In reviewing a motion for involuntary dismissal under Rule
4:37-2(b) or a motion for judgment under Rule 4:40-1, we apply
the same standard that governs the trial courts. ADS Assocs.
Grp. v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014); Frugis v.
Bracigliano, 177 N.J. 250, 269 (2003). Both motions are
governed by “the same evidential standard: ‘if, accepting as
true all the evidence which supports the position of the party
defending against the motion and according him the benefit of
all inferences which can reasonably and legitimately be deduced
therefrom, reasonable minds could differ, the motion must be
28
denied[.]’” Verdicchio, supra, 179 N.J. at 30 (quoting Estate
of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). The motion
should only “be granted where no rational juror could conclude
that the plaintiff marshaled sufficient evidence to satisfy each
prima facie element of a cause of action.” Godfrey v. Princeton
Theological Seminary, 196 N.J. 178, 197 (2008).
VI.
Applying the above-stated principles to the instant case,
we affirm the appellate panel’s decision that the trial court
erred in granting defendants’ motion for involuntary dismissal.
Here, the facts asserted by plaintiff, if assumed to be
true, demonstrate that plaintiff was discharged “in significant
part” based on his marital status. Slohoda, supra, 193 N.J.
Super. at 590. Plaintiff was not merely terminated because of
the identity of his spouse, an MRS employee. Plaintiff was
terminated based on his employer’s stereotypes about the impact
his divorce might have on the work performance of him and
others. Plaintiff testified that Redden’s statements revealed
his concern that the Smith divorce would be an “ugly divorce,”
even though there was apparently no evidence supporting Redden’s
concern. In fact, plaintiff testified that his divorce was
amicable and not at all “ugly.” Plaintiff also stated that
Redden told him that if he and his wife had been able to
reconcile, plaintiff would not have been terminated. Defendants
29
were not enforcing an anti-nepotism policy -- in fact,
defendants openly permitted plaintiff and his wife to work
together -- but instead terminated plaintiff because of
invidious stereotypes about divorcing persons. Such
discrimination is unlawful under the LAD.
The trial court went awry when it evaluated plaintiff’s
marital-status-discrimination claim through the prism of the
McDonnell Douglas circumstantial-evidence analysis rather than
the direct-evidence analysis. To be sure, some of the evidence
presented by plaintiff does tend to establish unlawful
discrimination by circumstantial evidence. Plaintiff testified
at length about his employment history, including promotions,
regular pay increases, and the lack of any criticism or poor
performance evaluations. Plaintiff also highlighted his ability
to control costs while maintaining the quality of the services
provided by MRS. Moreover, there was not a shred of evidence
that plaintiff’s separation from his co-employee wife caused any
disruption in the workplace. In fact, the evidence presented by
plaintiff, which the trial court was obliged to accept as true,
revealed that the divorce was prosecuted amicably and swiftly.4
4 Indeed, although the trial court erred in failing to evaluate
plaintiff’s case under the direct-evidence framework, our review
of the trial record indicates that there was sufficient evidence
for plaintiff to survive a motion for judgment under the
circumstantial-evidence analytical framework.
30
Plaintiff, however, also presented direct evidence of
discrimination, but the trial judge failed to evaluate the
sufficiency of that evidence to avoid an involuntary dismissal.
Plaintiff’s case included Redden’s facially discriminatory
statements about divorcing persons, which clearly signaled that
plaintiff was fired because of the demise of his marriage.
Redden’s statements in June 2005 and February 2006 reveal not
only his displeasure about plaintiff’s fractured marriage but
also his reliance on stereotypes about the manner in which
divorcing employees conduct themselves in the workplace. Redden
told plaintiff that he believed plaintiff and Mary would be
undergoing an “ugly divorce” and that, had plaintiff been able
to reconcile with his wife, he would not have been terminated.
Having submitted direct evidence of discrimination,
plaintiff was not required to satisfy the four McDonnell Douglas
factors for establishing a prima facie case of discrimination
based on circumstantial evidence. A.D.P., supra, 428 N.J.
Super. at 533 (citations omitted). Viewing that direct evidence
in the light most favorable to plaintiff, the trial court should
have denied defendants’ motion and permitted the jury to render
a verdict on plaintiff’s marital-status-discrimination claim.
VII.
In summary, we conclude that the LAD prohibits an employer
from discriminating against a prospective employee or a current
31
employee because they are single, married, or transitioning from
one state to another. The LAD aims to “discourage the use of
categories in employment decisions which ignore the individual
characteristics of particular applicants.” Sisler, supra, 157
N.J. at 204 (quoting Ogden v. Bureau of Labor, 682 P.2d 802, 810
(Or. Ct. App. 1984), aff’d in part and rev’d in part, 699 P.2d
189 (Or. 1985)). It does not, however, prohibit employers from
considering factors that “relate to the demonstrated needs of
the employer and the actual capabilities of an individual to
perform the job.” Ibid. (quoting Ogden, supra, 682 P.2d at
810). Therefore, the LAD does not prohibit an employer from
firing an employee who is engaged in a dispute -- marital or
otherwise -- that has become so contentious that it interferes
with his or other employees’ ability to carry out their work.
Here, Redden’s statements clearly give rise to an inference
of discrimination. Furthermore, accepting plaintiff’s evidence
as true, Redden’s remarks demonstrate not only that Redden was
biased against divorcing persons, but also that Redden’s animus
towards divorcing persons “actually bore on the employment
decision at issue[.]” McDevitt, supra, 175 N.J. at 528
(citation omitted). Therefore, the trial court erred in finding
that plaintiff failed to establish that he was terminated under
circumstances that give rise to an inference of discrimination.
32
VIII.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.
33