Divorce and Marital Status Discrimination: Your Workplace Rights
- What is marital status discrimination?
- What constitutes this kind of discrimination?
- Questions employers should not ask
- Which states have laws against marital discrimination?
- Domestic abuse and protection from discrimination
Whether you are getting married, going through a divorce, or re-marrying, the last thing you want to worry about is your marital status being held against you at work.
It’s important to understand your rights and to know when your employer may be violating them. The following guide explains what marital status discrimination is, what it looks like, and where it is unlawful.
What is marital status discrimination?
As its name suggests, marital status discrimination is workplace discrimination based on an employee’s marital status. Marriage discrimination can occur whether you are married or single. Like parental status discrimination, it’s a form of familial status discrimination.
Unlawfulness arises when an employer makes employment decisions based on marital status. Such conduct may include the denial of employment, employment opportunities, or promotions; harassment; unequal pay; and other negative actions.
While many states prohibit marital status discrimination, no federal law exists to protect against marital status discrimination or parental status discrimination. However, conduct that might otherwise constitute marital status discrimination may still violate Title VII, a federal law that prohibits workplace discrimination.
What is Title VII?
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on color, national origin, race, religion, and sex. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII and the Equal Pay Act, which prohibits unequal pay on the basis of sex.
While these federal laws don't specifically protect against marital discrimination, they may still protect against misconduct related to marital status since marital status discrimination is commonly considered discrimination based on sex.
What constitutes marital discrimination?
According to the EEOC, questions about marital status and children are commonly used to discriminate against women. Such questions may violate Title VII if used to deny or limit employment opportunities. Asking these questions only of women and not men (or vice versa) is also discriminatory.
However, even if an employer asks these questions of both men and women, this may be evidence of intent to discriminate against women with children. The EEOC advises employers to avoid asking “non-job-related questions involving marital status, number or ages of children or dependents, or names of spouses or children of the applicant.” These questions may be asked after an employment offer has been made and accepted for insurance purposes or other legitimate business purposes. Even then, however, this information should not be used against the employee in a discriminatory way.
Questions that may constitute marital status discrimination
According to the EEOC, the following pre-employment inquiries may be regarded as evidence of intent to discriminate when asked in a pre-employment context:
- Whether the applicant is pregnant
- The applicant's future childbearing plans
- Number and age of children
- Childcare arrangements
The marital status or marital intentions of the applicant
- Name of spouse
- Employment status of spouse
Which states have laws against marital discrimination?
As mentioned, federal law does not have specific provisions against marital discrimination, which is why the offending conduct is commonly captured by Title VII’s prohibition of sex discrimination. However, while federal law does not specifically deem marital status discrimination unlawful, many state laws prohibit discrimination based on marital status. According to Workplace Fairness, the following states have laws against marital and parental status discrimination:
- Alaska (marital status)
- California (marital status)
- Colorado (marital status)
- Connecticut (marital)
- Delaware (marital status)
- District of Columbia (familial discrimination)
- Florida (marital status)
- Hawaii (marital status)
- Illinois (familial discrimination)
- Iowa (parental status)
- Kentucky (parental status)
- Louisiana (parental status)
- Minnesota (marital and familial status)
- Montana (marital status)
- Nebraska (marital and familial status)
- New Jersey (marital status)
- New York (marital status)
- North Dakota (marital status)
- Ohio (familial status and marital status discrimination)
- Oklahoma (familial status)
- Oregon (familial and marital status)
- Pennsylvania (familial status)
- South Carolina (familial status)
- Texas (familial status)
- Utah (familial status)
- Virginia (familial and marital status)
- Washington (marital status)
- West Virginia (marital status)
- Wisconsin (marital status)
Since laws vary by state, check the rules in your jurisdiction to learn what conduct is prohibited.
In California, for example, employers cannot base employment decisions on whether a person is married or unmarried or to whom a person is married. California law also protects applicants and employees against discrimination based on family status, such as taking time off to care for a sick child or leaving the office early to attend a parent-teacher conference. This may be of particular concern for single parents and sole primary caregivers.
In Colorado, per the Colorado Anti-discrimination Act, marital status is a protected ground, meaning employers cannot discriminate based on marital status. In Utah, the Utah Anti-discrimination Act prohibits employers from discriminating against employees (or potential hires) based on pregnancy, childbirth, or pregnancy-related conditions.
Though marital status is not a protected ground, family status relating to currently having children or planning to have children is. In general, where protection against marital discrimination exists, employers cannot base employment decisions on an employee’s marital status. This includes comments made throughout the hiring process as well. Interview questions and job applications should not attempt to solicit information about an applicant’s marital status. Even questions that seemingly arise in normal conversation could be suspect. An example of this might be a recruiter asking whether a female applicant plans on marrying soon. Another example might be a recruiter sharing details about their own family life with the intention that the applicant reciprocates.
A note about victims of domestic violence
It is a sad truth that some marriages end as a result of domestic abuse. Several states have anti-discrimination laws to protect victims of domestic violence, sexual assault, and stalking. These laws protect victims who must take time off work to address the violence in their lives from employment discrimination. More information on domestic violence discrimination can be found here.
Understanding your workplace rights during and after divorce is important. Consult an employment discrimination attorney licensed in your state with questions about the legal protections available to you.
Not sure where to (legally) go from here? Explore your options with us.