Think You Understand Employment Discrimination Law? Here’s a Test.

Darrell VanDeusen
Darrell VanDeusen

If you are a student of employment law, you likely know the basics of employment discrimination and the concept of “disparate treatment” – the theory that it is impermissible to intentionally treat someone differently because they are a member of a protected class.  That’s where you get the most typical claims of discrimination.  The “I wasn’t hired because of my national origin,” or “I didn’t get paid the at the same wage because of my sex.”   Easy, right?

Over the next couple of days, class, we will focus on less frequent sorts of disparate treatment claims.   Today, we consider a “marital status” discrimination claim where the employee was not actually married, but the employer thought he was.  Tomorrow, we look at a religious discrimination claim where the employee alleges he was fired for not being religious, much to his employer’s dissatisfaction.

Wait! We just lived together.  In Morse v. Fidessa, Corp., No. 158948/16 6223 (Sup. Ct. App. Div. N.Y. Sept. 6, 2018), a New York court considered whether a male employee, Christopher Morse, had a claim for marital status discrimination under New York City Human Rights law (NYHRL).  Morse alleged that he was suspended and then fired by Fidessa because a co-employee, Lael Wakefield, left Fidessa to work for another financial services firm.

Fidessa’s management thought Wakefield was Morse’s spouse.  Morse claimed that he was told he was being fired because of this perceived marital relationship and that, if he divorced Wakefield, he would be reconsidered for re-employment.  He identified as a comparator an unmarried couple where both partners initially worked for Fidessa.  One left to work for a different financial services firm, but the partner who remained at Fidessa was neither suspended nor fired.

Fidessa countered that marital status discrimination cases focus on whether someone is married or not, but not to whom someone is married (as in the identity of the other person).  This traditionally has been the interpretation of “marital status discrimination” and the reason why, for example, an employer could have a rule that a married couple could not work together (or other traditionally acceptable anti-nepotism policies).  Fidessa moved to dismiss the complaint, which was denied.  Fideassa appealed.

The appellate division agreed that the case should proceed, stating that it was a case of first impression under the NYHRL, and that “[i]n light of the uniquely broad and remedial purposes of the City HRL, we hold that ‘marital status’ must be given a broader meaning than simply married or not married, and that it must encompasses other factors that may be used to deem the relationship ‘disqualifying,’ i.e., unacceptable.  Accordingly, the complaint before us, which alleges that defendant Fidessa Corporation terminated plaintiff’s employment after an employee who Fidessa believed was married to plaintiff left its employ states a cause of action for discrimination under the City HRL.”

The court noted that its decision ran contrary to Levin v. Yeshiva Univ., 96 N.Y.2d 484, 490 (2001), a housing discrimination case, which considered a “disqualifying relationship” to be one that was not a “legally recognized, family relationship.”   So, if a housing provider refused to rent to an unmarried person, regardless of whether the unmarried person was living with another person, its conduct would be actionable.  But, if the housing provider treated an unmarried couple disadvantageously, that would not be actionable because the disadvantageous treatment would be based on the couple’s marital status but on the disqualifying relationship (not being a “legally recognized, family relationship”).

The shift in view was because of the passage of the Local Civil Rights Restoration Act of 2005 (Local Law No. 85) (the Restoration Act), which “changed the judicial landscape with respect to the City HRL. A more recent enactment, Local Law No. 35 (Local Law 35) (2016) of City of New York, went even further.  That law amended Administrative Code § 8–130 (‘Construction’) ‘to provide additional guidance for the development of an independent body of jurisprudence for the New York city human rights law that is maximally protective of civil rights in all circumstances’ (Local Law 35 § 1).”  In other words, New York City’s anti-discrimination provisions are to be given the most generous, and broadest interpretation in every circumstance.

“Marital status,” said the court, “may refer to whether an individual is married or not married.  It may also refer to whether two individuals are married to each other or not married to each other.  In instant case, it refers to the latter:  the marital status of two people in relation to each other.  Enhanced liberal construction analysis is not only required to fulfill the intent of the City HRL but also aids in determining the ‘plain meaning’ of the statutory language.”

The take-away? Don’t think that what the law has been is what the law now is.  There are modifications that regularly occur.  The law is a living thing, that changes with each legislative session, and interpretations that sometimes change when the black robe is donned

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