Recently, Tony Dungy, former NFL head coach and current NBC analyst, became embroiled in controversy over his remark that, were he still coaching, he would not have drafted the first openly gay college football player, Michael Sam, not because of Sam’s sexual orientation, but because of the anticipated distraction his presence on the team would cause. A recent unpublished Appellate Division opinion addressed a similar question as to whether an employment decision based on a potential “disruption” at the workplace, resulting from an employee’s protected status, can be considered distinct from a decision based upon the protected status itself. A petition to the Supreme Court of New Jersey has been filed.

The per curiam decision in Smith v. Millville Rescue Squad (App. Div. June 27, 2014), appears to give rise to the inclusion of divorcées as a protected class under the New Jersey Law Against Discrimination (LAD) when it reversed the trial court’s dismissal of the plaintiff’s discrimination claim based on marital status, at the conclusion of the plaintiff’s case in chief. The Smith court held that the plaintiff had presented direct evidence of marital status discrimination after the plaintiff notified his supervisor that he was getting divorced and was subsequently fired. This evidence was sufficient to meet the plaintiff’s initial burden, and the court found that the trial should have continued to then allow the defendants an opportunity to meet their burden of persuading the jury that “an illegal bias played no role in the employment decision.”

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