During a recent conversation with an experienced business lawyer, it became clear that, despite his representation of companies in several states, he was unfamiliar with the concept of marital status discrimination. That got us thinking that there may be other lawyers and HR professionals who, despite efforts to stay current on employment law, may not have encountered this topic.
In fact, discrimination in employment on the basis of marital status is prohibited in 19 states and the District of Columbia (other sources say 20 or 22 states). Further, although Title VII and other federal employment laws do not cover marital status, federal employees are protected from marital status discrimination by the Civil Service Reform Act.
Generally, these state laws say that employers cannot refuse to hire, terminate, or otherwise take adverse action against an applicant or employee because he or she is single, married, separated, widowed, or divorced. Like race, gender, or religious affiliation, marital status cannot be considered in making employment decisions.
In a few jurisdictions, the law goes further and prohibits discrimination based on the situation or identity of a person’s spouse. In our home state of Minnesota, language prohibiting “situation or identity” discrimination has been in the Human Rights Act for decades. In Hawaii and Montana, courts have interpreted marital status protection to include protection against discrimination based on who an applicant or employee is married to, rather than just whether a person is married (or widowed or divorced). In a number of other states, however, including California and Alaska, the courts or the legislature have specifically rejected the broader interpretation. An article in the August, 2011 Bench and Bar of Minnesota provides a summary of both Minnesota’s unique statutory language and the decisions, in Minnesota and elsewhere, that interpret marital status discrimination prohibitions.
In jurisdictions where marital status discrimination prohibitions cover “situation or identity” claims, so-called anti-nepotism policies may be unlawful to the extent that they prohibit the employment of spouses or the supervision of one spouse by another. Employers may also be prohibited from terminating an employee because, for example, her abusive spouse disrupts the workplace, or prohibited from refusing to hire an individual whose spouse works for a competitor. In jurisdictions where the statute is silent as to “situation or identity” protections, employers should stay alert for court decisions that interpret the law to include those protections. As the number of same-sex spouses grows, claims of discrimination based on the identity of a spouse could also stand in for claims of discrimination based on sexual orientation in states where the latter is not actionable.
Marital status discrimination and other less-well-known forms of bias (such as discrimination because of public assistance status or age discrimination against the young) pose as much risk to employers as race, gender, or religious discrimination in those states and municipalities that prohibit them. Be sure that you’re familiar with the coverage of the anti-discrimination laws in all the areas in which your organization has employees, and that your employment policies and practices comply.
Posted by Judy Langevin