What can go wrong when you work with family members? A recent California Court of Appeal case shows us the potential for dramatic and challenging situations, including domestic violence, and reminds us of what is, and what is not, marital status discrimination and the extent of an employer’s duty to investigate (Nakai v. Friendship House Association of American Indians, 2017 WL 3867645 (2017)).
Orlando Nakai was employed at a San Francisco drug and alcohol rehabilitation center (“the center”) for over 20 years. In 2000, he married a co-worker whose mom was also the CEO of center. According to the court documents, Nakai and his wife began experiencing marital difficulties in 2014. In May 2016, Nakai’s wife called her mom and told her that Nakai had a gun, was angry with employees at the rehab center, was dangerous and had relapsed on drugs.
As the CEO, Nakai’s mother-in-law placed him on paid administrative leave. At the same time, the wife sought a temporary restraining order (TRO) against Nakai. Nakai disputes the facts supporting his wife’s application, but the TRO was issued.
Nakai’s wife showed her mom the TRO, and, without conducting any further investigation, her mom put her CEO hat on again and fired Nakai.
Nakai sued for wrongful termination, arguing he was unfairly fired based on overblown accusations by his wife. He claimed marital status discrimination because the CEO fired him in order to take sides with his wife (her daughter) in his divorce. He also claimed that his wife’s allegations triggered a duty under the Fair Employment and Housing Act (FEHA) to conduct an investigation before firing him.
The court dismissed both of these arguments.
Marital Status Discrimination Is Against the Law
California’s FEHA prohibits discrimination because of an employee’s marital status which includes whether the employee is:
- Not married;
- Divorced (or other dissolution, including annulment);
- Widowed; or
- In another marital status.
For instance, you can’t refuse to hire an applicant who is single, refuse to grant maternity leave to an unwed mother or refuse to promote someone because he/she got divorced.
Not Fired Because He Was Married
In this case, the court pointed out that Nakai was not fired because he is a married person. Instead, he was fired because of the turmoil going on with his wife and the CEO’s decision to side with her daughter over Nakai. As the court described it, this is “a family dynamics problem, not a marital discrimination problem.”
Laws prohibiting marital status discrimination are meant to protect classes of people (married people, single people, divorced people, etc.); these anti-discrimination laws don’t extend to the status of being married to a particular person.
For example, in one case, an attorney claimed she received unfavorable job assignments after she dated, and eventually married, another attorney in the office who her boss did not like. The court rejected her claim. She wasn’t subject to adverse employment treatment because she was married but because of who she was married to — a person on the “outs” with her boss. This is not marital status discrimination (Chen v. County of Orange, 96 Cal.App.4th 926 (2002)).
Indeed, the court noted that, in Nakai’s case, he was married to the CEO’s daughter for 16 years. If his marital status was the issue, Nakai would have been terminated much earlier. It was who he was married to – the CEO’s daughter – that led to the discharge, not his marital status.
In addition, the allegations Nakai presented actually support a legitimate nondiscriminatory reason for his termination: His wife told the CEO that Nakai had a gun and was angry at other co-workers, and his wife successfully obtained a TRO against him. As the CEO, Nakai’s mother-in-law stated that this triggered a workplace concern. The center’s policy prohibits threats against staff whether an employee is on duty or off. The court noted that the decision was clearly reasonable given concerns of workplace violence.
The court also held that the center did not have a duty to investigate Nakai’s claim. Nakai was an at-will employee, and he could be fired for any reason, as long as it was not discriminatory. In this case, there was no evidence of a discriminatory reason.
Nakai’s claims against the center were dismissed.
Some Narrow Exceptions to the General Rule
As mentioned above, an employer can’t consider an applicant’s or employee’s marital status when making hiring and firing decisions or other decisions that affect the terms and conditions of employment. It’s also unlawful to ask a job applicant to disclose his/her marital status.
There are a few, limited exceptions to these general prohibitions:
- An employer can ask whether an applicant has ever used another name as long as there is a business reason for the request. For example, a related business reason could be checking an applicant’s work history.
- An employer can ask an applicant whether he/she has a spouse currently working for the employer. This information cannotbe used for employment decisions except:
- You can refuse to place one spouse under the direct supervision of another spouse for business reasons of supervision, safety, security or morale.
- You can refuse to place spouses in the same department, division or facility for business reasons of supervision, security or morale if the work involves potential conflicts of interest or other hazards that are greater for married couples than for other people.
- For co-workers who marry, an employer must make reasonable efforts to assign job duties to minimize problems of supervision, safety, security or morale.
When you interview candidates, consider using standard questions to avoid the potential for discrimination.
- Don’t ask questions about marital status or questions about how many children the applicant has or is planning to have. Train hiring managersnot to ask inappropriate questions during interviews.
- Review the Department of Fair Employment and Housing’s Guide for Pre-Employment Inquiries, a helpful fact sheet that provides information on acceptable vs. discriminatory interview topics.
- Apply policies and standards consistently. Avoid making decisions based on subjective feelings about people, and instead, rely on objective facts.
- Take threats of workplace violence Businesses can obtain TROsagainst individuals who make credible threats of violence or who harass or stalk their employees.