Marital Status Discrimination

It is the public policy of the State of California “that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of . . . marital status.”

The state declared this public policy because it recognized that the practice of denying employment opportunity and discriminating in the terms of employment for reasons such as race, disability, sex, or marital status “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.” California Government Code section 12920.

California has expressly recognized and declared to be a civil right the opportunity to seek, obtain, and hold employment without discrimination because of protected characteristics such as marital status. California Government Code section 12921.

Under the FEHA, California’s chief law prohibiting discrimination in the workplace: It is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's marital status. California Government Code section 12940(a).

“The purpose of the law prohibiting marital status discrimination is to make it unlawful for an employer . . . to deny or grant employment benefits for the reason that an applicant or employee is either married or unmarried.” California Code of Regulations, title 2, section 11052.

Marital status is defined as, "a(n) individual's state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state." California Code of Regulations, title 2, section 11053. Thus, all workers are protected against marital status discrimination, as all individuals inherently and unavoidably have a status that relates to marriage.

Disclosure of marital status by those seeking employment: A prospective employer generally may not ask a job applicant to disclose his or her marital status during the pre-employment process. However, it is lawful to ask a job applicant whether he or she has a spouse who is presently employed by the prospective employer. California Code of Regulations, title 2, section 11056. An employment decision may not be based on whether an individual has a spouse presently employed by the employer except for certain business reasons involving supervision, security, morale, or “potential conflicts of interest or other hazards greater for married couples than for other persons.” California Code of Regulations, title 2, section 11057.

Thus, employers may not refuse to employ a husband or a wife simply because they are both working for the employer as a married couple. "California's marital status antidiscrimination laws are clear that marriage between two coworkers is not ipso facto (by that very fact) a reason to get rid of one of them." Hope International University v. Superior Court (Rouanzoin)(2004) 119 Cal.App.4th 719, 724, 744. Example: A university could be found liable for terminating married professors merely because they married.

However, though antidiscrimination laws generally forbid discrimination toward married individuals working for the same employer, "reasonable regulation" over the working of spouses in the same department is allowed. California Government Code section 12940(a)(3)(A). In addition, FEHA regulations state that if employees marry, the employer "shall make reasonableefforts to assign job duties so as to minimize problems of supervision, safety, security, or morale." California Code of Regulations, title 2, section 11057. (emphasis added)

In contrast, employers who discharge employees that have known extramarital affairs are not discriminating on the basis of marital status. Hope International University v. Superior Court (Rouanzoin)119 Cal.App.4th at 743.

Employment benefits: “The availability of benefits to any employee shall not be based on the employee's marital status.” Fringe benefits provided by the employer may “not be conditioned upon whether an employee is head of household, principal wage earner, secondary wage earner, or other similar status.” California Code of Regulations, title 2, section 11058.

Inter-Personal Conduct: An employer may not justify marital status discrimination on the basis that the employee’s marital status is incompatible with “job responsibilities such as travel, entertainment, or other non-office hour duties.” It is also unlawful to require a married female applicant or employee to use her husband's name as opposed to her maiden name or other legal name. California Code of Regulations, title 2, section 11058. While an employer may ask an employee or job applicant the name and address of persons to be notified in case of accident or emergency, the employer may not inquire as to the employee’s relationship with the person to be notified in case of accident or emergency. California Department of Fair Employment & Housing Fact Sheet, Employment Inquiries, DFEH-161 (8/01).

Marital status discrimination may be established by showing that an employee (or job applicant) was denied an employment benefit because of:

1. The fact that the employee (or job applicant) was not married;
2. The employee’s (or job applicant’s) single or married status, or
3. The employment or lack of employment of the employee’s (or job applicant’s) spouse with the employer (or prospective employer).

California Code of Regulations, title 2, section 11054.

To bring a claim for discrimination based on an employee's marital status, the plaintiff may also need to prove:

• that the employee's job performance was satisfactory, or that the employee was qualified for the job he or she was not hired for,
• and that other employees with a different marital status (i.e., who were not single) were not subjected to the discriminatory actions of the employer. (Ex: other workers who were married retained similar jobs, and the employee who is bringing the claim is single and lost his or her position to an individual with similar qualifications to the discharged employee but who was married).

An employer was found to have discriminated when it refused to hire unwed mothers and single people, as well as by denying maternity leave to unmarried mothers. Chen v. County of Orange (2002) 96 Cal.App.4th 926, 940 (dictum).

Employers may not discriminate against spouses of individuals the employer disfavors if the reason the employer disfavors the spouse is because of a characteristic protected under the FEHA. For example, the employer may not discriminate against an employed white female by denying her a permanent position as a secretary for a corporation solely because she married an African American male. Chen v. County of Orange(2002) 96 Cal.App.4th at 943.

While the FEHA’s federal counterpart Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.) (Title VII) does not expressly prohibit marital status discrimination, questions directed to a job applicant such as the applicant’s marital status, the number and ages of children, whether the applicant is pregnant, or whether the applicant plans to marry may violate Title VII’s prohibition against sex discrimination if used to deny or limit employment opportunities. In contrast, the Civil Service Reform Act of 1978 (5 United States Code section 1701, et seq.) does expressly protect federal government applicants from discrimination in personnel actions based on marital status.

If you have experienced discrimination at your workplace based on your marital status, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.