New Jersey Justices Consider Whether Divorce Can Justify Firing

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New Jersey 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.

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