BB&K In The News

BB&K attorney Sarah Mohammadi writes in Riverside Lawyer about when an employer can consider an employee’s marital status.

There are a number of special legal and social advantages offered to people who choose to enter into the institution of marriage.¹ Similarly, a whole host of benefits are offered to domestic partners in California. These benefits are conferred upon spouses by both the federal and state governments and private entities alike and include, but are not limited to, preferential tax treatment, social security benefits, protections offered by intestate succession, and employee family health care. Despite the fact that marital status and domestic partnership status² (herein referred to as “marital status”) confers benefits upon spouses in countless legal contexts, it cannot be considered for better or for worse in the scope of employment matters.

In California, the Fair Employment and Housing Act (“FEHA”) prohibits an employer (or a prospective employer) from discriminating against an individual based upon his or her marital status.³ Based thereon, an individual’s state of marriage, non-marriage, divorce, separation, widowhood, annulment, or other marital state cannot be considered by an employer when making decisions regarding the individual’s employment, including, but not limited to, hiring, firing, advancement, and discipline. In order for an employee⁴ to properly state a claim for discrimination under California Government Code section 12940(a), the employee will need to prove that he/she was denied some sort of employment benefit because of his/her single or married status, or because his/her spouse is employed, or not employed.⁵

Based thereon, employers should never consider an employee or applicant’s marital status when making hiring decisions, firing decisions or other decisions involving the terms and conditions of employment. The best practice would be for employers not to ask questions regarding an employee or applicant’s marital status. However, there are some narrow exceptions to these rules, where an employer may ask questions about an individual’s marital status and/ or may make employment related decisions based on marital status without running the risk that they are engaging in discrimination based on marital status.

The Exceptions

Generally, employers should refrain from considering an employee (or potential employee’s) marital status or asking a job applicant to disclose his or her marital status.⁶ However, there are specific circumstances where asking questions about an individual’s marital status, either directly or indirectly, and considering marital status will be deemed acceptable. Some examples of these exceptions are as follows:

• An employer may ask whether an applicant has ever used another name in order to check the applicant’s work history, despite the fact that the question may reveal the employee’s marital status.⁷
• FEHA carves out a specific exception allowing an employer to ask an applicant whether their spouse is currently employed by the employer.⁸ However, there are strict limitations on the use of this information. Employers are not allowed to use the applicant’s response as a basis for an employment decision absent two specific circumstances.⁹ First, an employer may regulate the working of spouses in the same department, division or facility for the business reasons of supervision, security or morale if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons.¹⁰ Second, and similarly, employers may refuse to place one spouse under the direct supervision of the other spouse for business reasons of supervision, safety, security, or morale.¹¹ If neither conflicts of interests, hazards, or supervision issues exist, the employer may not consider the employee’s marital status in any employment related decision. Notably, if two employees get married during their tenure with their employer, the employer must make reasonable efforts to assign job duties, so as to minimize problems of supervision, safety, security or morale.¹²
• Employers are free to utilize health plans that pro-vide additional or greater benefits for employees with dependents than those without or with fewer dependents.¹³ Notably, employers are not permitted to condition medical benefits or other fringe benefits on whether an employee is the principal or secondary wage earner for his/her family.¹⁴

Navigating the perilous waters of marital status dis­crimination can be challenging for employers, especially with the increasing popularity of social media websites like Facebook and Twitter. Employers should exercise extreme caution when looking at an applicants’ or employees’ social media accounts, because it may reveal their marital status, and employers cannot make any employment decisions on that basis, except for the narrow anti-nepotism exceptions carved out above. Employers should contact their legal counsel if an employee or applicant’s marital status ever becomes germane to an employment decision.

1. Federal law confers 1,138 benefits, rights and protections provided on the basis of marital status. (See, Human Rights Campaign, http://www.hrc.org/resources/an-overview-of-federal-rights-and-protections-granted-to-married-couples.)

2. California’s domestic partnership law provides that registered  domestic partners have “the same rights regarding nondiscrimination as those provided to spouses.” (California Family Code § 297.5(f).) Based thereon, employers or prospective employers may not discriminate against any individual based on their domestic partnership status.

3. California Government Code § 12940(a). California Government Code § 12940(j) also protects employees from harassment based on their marital status.

4. Notably, California Government Code § 12940(a) and (c) also protect prospective employees and apprentices from unlawful discrimination.

5. 2 California Code of Regulations § 11504.

6. 2 California Code of Regulations § 11056(a).

7. 2 California Code of Regulations § 11056(b).

8. California Government Code § 12940(a)(3); 2 California Code of Regulations § 11056(c).

9. 2 California Code of Regulations § 11056(c).

10. California Government Code § 12940(a)(3)(A); 2 California Code of Regulations § 11057(a)(2).

11. California Government Code § 12940(a)(3)(A); 2 California Code of Regulations § 11057(a)(1).

12. 2 California Code of Regulations § 11057(b).

13. California Government Code § 12940(a)(3)(B).

14. 2 California Code of Regulations § 11058(a)(2).