Can an employee fired for an extra-marital affair claim marital-status discrimination?

1963 Rambler Ambassador 880 sedan gold-white K-j.jpgWell, I suppose you can claim just about anything.

For example ***takes big dose of medication*** I claim god status on the third sun for Rondor. My fourth place finish on the unaired celebrity-blogger episode of Chopped really raised by Rondor grass cred. (No streets on Rondor; only luscious purple grass).

But, when you’re a married school superintendent. And you sneak off during school hours. And you’re sneaking with a female para-educator. Well, sneaking and having sex with the female para-educator in her parked car. You can imagine how this ended.

Well, the former school superintendent — see what I did there? — claimed that his marital status (as opposed to his sexual relationship with a female co-worker who was not his wife) was the reason for his termination.

Thoughts…

What private-sector employers need to know about marital-status discrimination.

The Civil Service Reform Act protects federal government applicants and employees from discrimination in personnel actions based on marital status. In the private sector, there is no federal protection for marital status discrimination. However, several states, such as New Jersey (where I practice), the District of Columbia (ditto), and the State of Washington (no, but the steaks at Metropolitan Grill…OMG!) have these protections.

Indeed, the superintendent case comes from Washington State. To support his claim that he was fired because of his marital status, the superintendent relied primarily on three of the school board’s articulated reasons for firing him:

  1. He engaged in a “long-standing extramarital affair” with a subordinate employee;
  2. He engaged in inappropriate and unprofessional conduct with a female professional “while . . . married;” and
  3. He used district equipment for “inappropriate personal reasons including pursuit of [his] inappropriate extramarital affair with a School District staff member.”

Proving marital-status discrimination.

To prove marital-status discrimination, a plaintiff must demonstrate that his marital status played a substantial factor with whatever adverse employment action he has beef. While this can be established with circumstantial evidence, the plaintiff here had direct evidence of discrimination; namely, the explicit references to his marital status in support of school’s termination decision.

Now, of course, the school argued that it would have fired the superintendent anyway. But, when it specifically referenced the superintendent’s protected class in its termination decision, the school’s motivations became a question or a jury, rather than a call that a judge could make a summary judgment.

Takeaway for employers.

When you make a termination decision, in most cases, it’s best not to reference the employee’s protected class.

Image Credit: “1963 Rambler Ambassador 880 sedan gold-white K-j” by CZmarlin — Christopher Ziemnowicz. Licensed under CC0 via Commons.

 

 

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