Divorce + marital status discrimination.

Divorce & Marital Status Discrimination: Understanding Your Workplace Rights

Changing your marital status is a complex endeavor. 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 that is based on an employee’s marital status. It can occur whether you are married or single. Like parental status discrimination, it’s a form of familial status discrimination.

The unlawful discrimination arises when an employer makes employment decisions based on this status. Such conduct may include the denial of employment, employment opportunities, or promotions; harassment; unequal pay; and/or other negative action.

While many states have made marital status discrimination unlawful, there is no federal law that protects against discrimination based on marital status or parental status. However, conduct that might otherwise constitute marital status discrimination may still violate Title VII—a federal law that prohibits workplace discrimination.

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 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.

The following conduct may constitute 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 that, generally, employers should avoid asking “non job-related questions involving marital status, number and/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 if needed for insurance or other legitimate business purposes. However, even then, this information should not be used against the employee in a discriminatory capacity.

What type of employer questions 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 the pre-employment context:

  • Whether applicant is pregnant.
  • Marital status of applicant or whether applicant plans to marry.
  • Number and age of children or future child-bearing plans.
  • Child-care arrangements.
  • Employment status of spouse.
  • Name of spouse.

Which states have laws against marital discrimination?

As mentioned above, federal law does not have specific provisions against marital discrimination, which is why the offending conduct is commonly captured by Title VII’s prohibition on sex discrimination. However, while federal law does not specifically make marital status discrimination unlawful, many state laws specifically 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), 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) discrimination, 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, you should always check the rules in your jurisdiction to learn what conduct may be prohibited.

In California, for example, employers cannot base employment decisions on whether an employee is married or unmarried or to whom an employee 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 those who act as the sole primary caregiver during the week.

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 seem to arise from normal conversation could be suspect—for example, a recruiter asking whether a female applicant plans on getting married soon or sharing details about their family life with the intention that the applicant reciprocate.

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 in place to protect victims of domestic violence, sexual assault, and stalking. These laws protect victims who must take time from work to address the violence in their lives and/or that protect victims from employment discrimination related to the violence. More information on domestic violence discrimination can be found here.

Understanding your workplace rights during and after your divorce is important. Always consult with an employment discrimination attorney licensed in your state with questions about the legal protections that may be available to you.

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