An employee’s marital status should never influence an employer’s decision to hire, promote, or terminate the employee, nor should it affect how much that employee is paid. However, marital status discrimination continues to be an issue in the workplace. This type of discrimination includes refusing to hire someone due to a current or potential pregnancy, either planned or assumed. Additionally, a widow cannot be declined work due to needing their own benefits.
Discrimination based on marital status can be hard to recognize, and even more difficult to prove. Many employers will ask an applicant questions about their marital or family status, which is inappropriate and this practice may violate the law. While this line of questioning may appear to be casual conversation, it may actually be intended to screen applicants who are married, single, widowed, or separated. Pre-employment questions that may be discriminatory include:
- Child care arrangements
- Marital status
- Number of children and their ages
- Future plans to bear children
- Whether the applicant is currently pregnant
- Employment status of spouse
While these questions are not definitively discriminatory, they do raise red flags, especially when an otherwise qualified candidate is passed over for a position. In general, these questions should not be asked until after a position is offered, in relation to health insurance, benefits,or for other legitimate business reasons. They should not be asked as part of the screening process for a potential hire. While socially awkward, applicants have the right to keep information about their marital and family status confidential through the screening and interview process.
State Law that Prohibits Marital Status Discrimination
In New Jersey, the New Jersey Law Against Discrimination (NJLAD) provides protection to employees and job applicants from unlawful discrimination based on one’s marital status, familial status, domestic partnership or civil union status, in addition to other protected classifications. Because New Jersey takes employment discrimination so seriously, employees can pursue legal remedies under the NJLAD if they have faced discriminatory treatment at work.
EEOC Protections Against Discrimination
The EEOC offers federal protections against discrimination including age, sexual orientation, sex, race, religion, national origin, disability, and genetic information. These protections also protect against marital status discrimination, though not explicitly. While this type of discrimination is not directly covered under the laws enforced by the EEOC, there are several circumstances in which the protections that are provided by the EEOC apply.
Most notably, sex discrimination and pregnancy discrimination are often cited in filed claims. Pregnancy is considered a disability by the definition provided by the EEOC, which directly protects pregnant individuals from being passed over for positions they otherwise qualify for, being demoted either upon learning they are pregnant or their return from maternity leave, being passed over for a promotion they are qualified for, or other wage and hour cuts on the basis of their pregnancy.
Sex discrimination is also closely related to marital status discrimination claims. Often times, marital status is taken into consideration when the employee is a woman, as opposed to a man. This is especially true when a woman is not promoted after she is married because her employer assumes that she will decide to start a family and will not be able to handle a significant workload. However, other employers may feel that married women should stay home with her children, these employees may be demoted or terminated based on that view. . Other employers may not provide female employees with adequate raises, promotions, or benefits because these employers assume that their husbands are the household providers.
Proving a case can be difficult, so choosing the right attorney and pursuing the most advantageous legal theory is critical – this may be the difference between receiving a fair resolution and receiving no justice. Our skilled employment lawyers can help review you prospective marital status discrimination claim and develop a personalized approach.