                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                            Robert Smith v. Millville Rescue Squad (074685) (A-19-14)

Argued December 1, 2015 – Decided June 21, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

         In this appeal, the Court considers whether the prohibition in the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -42, against discrimination based on marital status extends to a person who has separated from
their spouse and is in the process of divorce. The Court then determines whether, on defendant’s motion for an
involuntary dismissal of the complaint, plaintiff presented a prima facie case of discrimination under the LAD where
he alleged that defendant terminated his employment based on his separation and impending divorce from his co-
employee wife, after he began an extra-marital affair with a colleague.

         In February 2006, plaintiff Robert Smith, who was then employed as director of operations of defendant
Millville Rescue Squad, was terminated from employment. This occurred shortly after he informed his supervisor
that he was engaged in an affair with a volunteer worker, and that he and his wife, who also worked for the rescue
squad, were separated and about to commence divorce proceedings.

          Plaintiff testified that, when he informed his supervisor about the affair, the supervisor stated that he could
not promise that it would not affect plaintiff’s job. At a subsequent meeting in February 2006, plaintiff’s supervisor
stated that he believed that plaintiff and his wife would have an “ugly divorce.” The supervisor further stated that he
had to take the matter to the rescue squad’s board. At the meeting, the board decided to terminate plaintiff’s
employment. The minutes of the meeting referred to a corporate restructuring, plaintiff’s poor performance for
some time, and the failure of efforts to remediate plaintiff’s performance, as grounds for the termination. Defendant
terminated plaintiff’s employment on the following day.

          Plaintiff commenced suit against the rescue squad and his supervisor, asserting claims under the LAD and
the State Constitution for wrongful discrimination on the basis of sex and marital status, and common law wrongful
discharge. Plaintiff testified at trial to the statements that his supervisor had made after plaintiff told him about his
separation and impending divorce. Plaintiff also testified that he was never subject to formal discipline, and that he
was promoted twice and had received annual raises. Plaintiff further testified that he and his wife obtained a divorce
several months after they commenced proceedings, the divorce was amicable, and he continues to have a good
relationship with his former wife.

          At the conclusion of plaintiff’s case, the court granted defendant’s motion for an involuntary dismissal. On
plaintiff’s claim of marital-status discrimination under the LAD, the court found that plaintiff had failed to present
evidence that he was terminated because he was either married or unmarried, or because he was having an affair, or
any evidence that employees were treated differently based on their marital status. The court found that plaintiff’s
proofs showed that he was terminated because management was concerned about the likelihood of an acrimonious
divorce, which the court held did not give rise to a marital-status discrimination claim.

         The Appellate Division reversed the dismissal of plaintiff’s marital-status discrimination claim. The panel
interpreted “marital status” to include the states of being separated and involved in divorce proceedings. The panel
determined that, based on the comments by plaintiff’s supervisor, plaintiff presented evidence that he was
terminated based on negative stereotypes that defendant held about divorcing employees, and that plaintiff had
established a prima facie case of discrimination. This Court granted certification. 220 N.J. 42 (2014).

HELD: The protection that the LAD affords against discrimination based on marital status is not limited to the state
of being single or married. The LAD also prohibits discrimination against a prospective or current employee based
on their status as separated, in the process of divorce, or divorced. The evidence that plaintiff presented at trial
suggests that defendant’s animus toward divorcing persons, based on stereotypical views, affected the decision to
terminate plaintiff’s employment, and therefore created an inference of discrimination due to defendant’s marital
status. The trial court erred in finding that plaintiff failed to establish a prima facie case of marital-status
discrimination in employment under the LAD.

1. The LAD declares certain actions, including the termination of an employee, to constitute an unlawful
employment practice if based on factors such as race, sex, marital status, national origin, and age. “Marital status” is
not defined in the Act, and there is no legislative history which identifies the scope and boundaries of the employee
protection which this term affords. Therefore, the Court must identify and implement the legislative intent of the
LAD. (pp. 14-18)

2. The stated purpose and goals of the LAD strongly suggest that the Court should consider marital status to mean
more than the state of being single or married. A broader interpretation is consistent with the remedial purpose of
the statute, and advances its goal of eradicating discrimination in the workplace. A liberal interpretation would also
prevent employers from resorting to invidious stereotypes to justify the discharge of employees who never married,
or who are engaged, separated, involved in divorce litigation, or recently widowed. (pp. 18-20)

3. “Marital status” should be interpreted to include individuals who are single or married, and those who are in
transition from one of these states to another. This interpretation covers basic decisions that an employee makes
during his or her lifetime such as those involved in marriage or divorce, and an individual should not fear that such
events will also trigger a loss of employment, or a promised promotion. This interpretation does not interfere with
an employer’s legitimate business judgment and policies regarding its workforce, including the ability to discipline
or terminate an employee who is inattentive to his job responsibilities. Our interpretation likewise does not disturb
settled precedent harmonizing the LAD and anti-nepotism policies. Our construction of the Act prevents an
employer from resorting to stereotypes in its assessment of a potential or existing employee that bear no relation to
the employee’s performance in the workplace. (pp. 22-23)

4. An employee may attempt to prove a violation of the LAD through either direct or circumstantial evidence of
discrimination. If the claim is based on circumstantial evidence, the plaintiff must prove, by a preponderance of the
evidence, the four elements of the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
employer can seek to rebut the presumption of discrimination with evidence of a legitimate, non-discriminatory
reason for the action taken. The burden then shifts to the employee to show that the employer’s proffered reason
was a pretext for discrimination. (pp. 24-27)

5. Upon review of a motion for involuntary dismissal under Rule 4:37-2(b), or a motion for judgment under Rule
4:40-1, the Court applies the same standard that a trial court must use. Under that standard, if, accepting as true all
evidence which supports the position of the opponent of the motion, and according him all reasonable inferences
from the evidence, reasonable minds could differ, the motion must be denied. The motion should be granted only if
no rational juror could conclude that plaintiff marshalled sufficient proof to demonstrate a cause of action. (pp. 28-
29)

6. Under this standard, plaintiff presented a prima facie case of marital-status discrimination by direct evidence.
The facts that plaintiff asserted demonstrate that he was discharged based, in significant part, on his employer’s
stereotypical view of divorcing parties, and the presumed impact that plaintiff’s divorce would have on the work
performance of plaintiff and others. The evidence further demonstrated that defendants were not enforcing an anti-
nepotism policy because they had permitted plaintiff and his wife to work together for a number of years. The trial
court improperly utilized the McDonnell-Douglas test to assess plaintiff’s proofs, because it is applicable only where
the claim is based on circumstantial evidence. (pp. 29-31)

         The judgment of the Appellate Division is AFFIRMED.

     CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE FERNANDEZ-VINA did not participate.




                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-19 September Term 2014
                                                 074685

ROBERT SMITH,

    Plaintiff-Respondent,

         v.

MILLVILLE RESCUE SQUAD and
JOHN REDDEN,

    Defendants-Appellants.


         Argued December 1, 2015 – Decided June 21, 2016

         On certification to the Superior Court,
         Appellate Division.

         Steven Gerber argued the cause for
         appellants (Gonzalez Saggio & Harlan,
         attorneys; Mr. Gerber, Mary P. Gallagher,
         and Ola A. Nunez, on the briefs).

         Mario A. Iavicoli argued the cause for
         respondent.

         Jeanne M. LoCicero argued the cause for
         amicus curiae American Civil Liberties Union
         of New Jersey (Edward L. Barocas, Legal
         Director, attorney; Ms. LoCicero, Mr.
         Barocas, and Alexander R. Shalom, on the
         brief).

    JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

    This appeal addresses the scope of the marital status

protection afforded to employees by the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -42.   In this appeal,


                                1
plaintiff Robert Smith was terminated from his position as

operations director of a rescue squad soon after he revealed

that he and his co-employee wife were separated, would not

reconcile, and were about to initiate divorce proceedings.     We

hold, as did the Appellate Division, that marital status is not

limited to the state of being single or married.   Rather, the

LAD also protects all employees who have declared that they will

marry, have separated from a spouse, have initiated divorce

proceedings, or have obtained a divorce from discrimination in

the workplace.

    The LAD prohibits an employer from imposing conditions of

employment that have no relationship to the tasks assigned to

and expected of an employee.    It also prohibits an employer from

resorting to stereotypes to discipline, block from advancement,

or terminate an employee due to a life decision, such as

deciding to marry or divorce.    The LAD does not bar an employer

from making a legitimate business decision to discipline or

terminate an employee whose personal life decisions, such as a

marital separation or divorce, have disrupted the workplace or

hindered the ability of the employee or others to do their job.

However, an employer may not assume, based on invidious

stereotypes, that an employee will be disruptive or ineffective

simply because of life decisions such as a marriage or divorce.



                                  2
    We also determine that plaintiff presented sufficient

evidence from which a reasonable jury could find that the

employer harbored discriminatory animus against divorcing

employees and that this animus bore directly on the decision to

terminate plaintiff’s employment.      The trial court therefore

erred when it dismissed the complaint at the close of

plaintiff’s case.   We therefore affirm the judgment of the

Appellate Division and remand the matter to the trial court for

further proceedings.

                                I.

    We present the facts adduced at trial “accepting as true

all the evidence which supports [plaintiff’s position] and

according him the benefit of all inferences which can reasonably

and legitimately be deduced therefrom,” Verdicchio v. Ricca, 179

N.J. 1, 30 (2004) (citation omitted), as we must, given the

procedural posture of this case.

    Plaintiff Robert Smith is a certified emergency medical

technician and paramedic.   He was associated with defendant

Millville Rescue Squad (MRS), which provides medical

transportation and rescue services, for seventeen years,

initially as a volunteer member.       Plaintiff assumed a paid

position in January 1996.   At the time of his termination in

February 2006, plaintiff served as Director of Operations and

had held that position since June 1998.       Plaintiff’s direct

                                   3
supervisor was co-defendant John Redden, MRS’s Chief Executive

Officer.    Plaintiff’s wife at the time, Mary, was also employed

by MRS, as were her mother and two sisters.

    In early 2005, plaintiff commenced an extramarital affair

with an MRS volunteer, who was supervised directly by plaintiff.

In June 2005, Mary learned of plaintiff’s affair and reported it

to Redden.    Shortly thereafter, plaintiff informed Redden of the

affair.     During that conversation, plaintiff testified that

Redden told him that he could not promise that the affair would

not affect plaintiff’s job.     According to plaintiff, on the

subject of plaintiff’s continuing employment with MRS, Redden

stated, “All depends on how it shakes down.”

    The MRS volunteer left MRS on June 27, 2005, but the affair

continued, leading to irreconcilable discord between plaintiff

and Mary.    On January 1, 2006, plaintiff moved out of the

marital home.    On January 2, 2006, plaintiff informed Redden

that his marriage to Mary had collapsed.     According to

plaintiff’s testimony, Redden thanked plaintiff for keeping him

informed and asked to be notified of any developments regarding

his marital status.

    On February 16, 2006, plaintiff and Redden met again.

According to plaintiff’s testimony, Redden told plaintiff that

he did not think there was any chance of reconciliation between

plaintiff and Mary and that he believed there would be an “ugly

                                   4
divorce.”   Plaintiff testified that Redden informed him that if

there had been even the slightest chance of reconciliation,

Redden would not have to take the issue to the MRS Board of

Directors (the Board).   According to plaintiff, Redden stated,

“You had eight months to make things right with your wife.”

Plaintiff also testified that Redden said he understood that

plaintiff had “to do what’s best for me.”   Redden informed

plaintiff that he had to take the matter to the Board.

    Plaintiff testified that Redden also indicated that he

should not have met with plaintiff and that he was only supposed

to meet with plaintiff the next day to terminate his employment.

Redden informed plaintiff that if anyone learned that they had

met, he would deny it.

    Plaintiff asked Redden if he was being terminated because

he was the one who had the affair.   Redden replied that if he

had to terminate plaintiff, it would be for one of four reasons.

Two of those reasons were elimination of plaintiff’s job because

of restructuring and “poor work performance[.]”   Plaintiff

testified that he could not recall the other two reasons.

    Later, plaintiff learned that the Board held a meeting on

February 7, 2006, which was attended by Redden.   According to

meeting minutes, the Board decided to terminate plaintiff at

that meeting.   The minutes contain discussions of an

“operational restructuring” that would negatively impact

                                 5
plaintiff’s position.   The minutes include a note that

plaintiff’s “work performance has been very poor for some time,”

and that “all efforts to remediate have failed.”   The minutes

also state that “Redden feels there are no other options

available, and [plaintiff] must be terminated.   The board

members told Chief Redden to seek advice of legal counsel before

taking this action and proceed as necessary with his

termination.”

    When Redden informed plaintiff that the Board had decided

to terminate plaintiff and that the decision was final, Redden

gave plaintiff one day to resign before being fired.     Plaintiff

said he would resign and left the meeting.   Thereafter,

plaintiff decided not to resign, and he was fired the next day,

February 17, 2006.

    Plaintiff testified that the MRS Employee Information

Manual (the Manual) provided that plaintiff was an “at will”

employee who could resign or be terminated at any time with or

without cause or notice.   The Manual also included a sexual

harassment policy, but plaintiff testified that he did not

believe that having a relationship with a subordinate was a

problem because two other supervisors at MRS had dated employees

whom they supervised.   The Manual also prohibited the use of

plaintiff’s business cell phone for personal purposes.     Phone

records indicated that plaintiff frequently used his business

                                 6
cell phone to speak with the MRS volunteer after work hours.

Plaintiff testified, however, that no one ever complained to him

about his cell phone use.

    Plaintiff testified that other employees had divorced while

working at MRS, but he did not know of any other employee who

had been terminated because of a divorce.    Furthermore, in

January 2001, he learned that Mary had an affair with an MRS

mechanic.   Plaintiff considered the situation awkward but never

confronted the mechanic, and Mary was not terminated or

disciplined because of the affair.

    Plaintiff also testified that, during the course of his

employment, he was never subject to formal discipline.

Plaintiff emphasized that he was promoted twice and received

raises annually, even after Redden learned of the affair.      The

Manual called for regular performance evaluations, but plaintiff

testified that he only received one informal performance

evaluation, in October 2000, which was conducted by Redden and

which plaintiff characterized as positive.

    Plaintiff’s friend and former colleague, Wally Maines,

testified that he had worked with plaintiff at MRS and that he

believed plaintiff was a good supervisor.    Maines testified that

plaintiff had encountered some issues with scheduling, and that

Maines felt that he would have done a better job at scheduling

than plaintiff.   Maines explained that on several occasions, he

                                 7
informed Redden of the scheduling issues and Maines’ desire to

do plaintiff’s job.   Redden, however, never implemented Maines’

suggestions and did not offer Maines the job.    Maines

acknowledged that some of the scheduling issues could have been

caused by uncontrollable factors unrelated to plaintiff’s job

performance, and that some problems were caused by staff cuts

dictated by the Board and Redden.     Maines also testified that,

after plaintiff was terminated, he had a conversation with

plaintiff in which plaintiff suggested he was fired because of

the prospect of an “ugly divorce.”

    Following plaintiff’s termination, his position was filled

by two employees -- Mary and a male employee -- who served as

Co-Directors of Operations.   Additionally, MRS appointed a male

employee to the newly created position of Chief Operating

Officer to supervise the co-directors of operations.

    In March 2006, plaintiff and Mary filed for divorce.      Their

divorce was finalized that September.    Plaintiff testified that

the divorce was “amicable,” and not “messy,” and that he

continues to have a good relationship with Mary.

                                II.

    On February 6, 2008, plaintiff filed a complaint against

MRS, Redden, and unnamed “John Does” who were involved in

plaintiff’s termination.   The complaint asserted two counts:

wrongful discrimination on the basis of sex and marital status

                                 8
in violation of the LAD, N.J.S.A. 10:5-1 to -42, and the State

Constitution (count one); and common law wrongful discharge

(count two).   A trial commenced before a jury on the LAD claim.1

At the conclusion of plaintiff’s case, defendants filed a motion

for judgment pursuant to Rule 4:40-1 and a motion for

involuntary dismissal pursuant to Rule 4:37-2.

     After hearing oral argument, the court issued a written

decision granting the motion for involuntary dismissal, thereby

dismissing plaintiff’s gender and marital status LAD claims.       In

its decision, the court held that plaintiff was required to

establish four elements to succeed on his LAD claim:     1) that

plaintiff is a member of a protected class; 2) that he was

performing his job at a level that met his employer’s legitimate

expectations prior to his termination; 3) that he was fired

nevertheless; and 4) that he was replaced by someone not in the

same protected class, that non-protected-class workers with

comparable work records were retained, or that he was terminated

under circumstances giving rise to an inference of

discrimination.

     The trial court found that plaintiff failed to satisfy

factor two, because he did not demonstrate that he was




1  The trial court dismissed plaintiff’s constitutional claims
and common law wrongful discharge claims prior to trial.


                                 9
performing, or qualified to perform, the positions of Chief

Operating Officer and Co-Director of Operations,2 which were

newly created when he was terminated.

       The court also found a failure of proof regarding factor

four.    The court concluded that plaintiff had not shown that

non-protected workers with comparable work records were retained

or that he was replaced by someone not in the same protected

class, because the new positions were filled by Mary and two

men.    The court also concluded that plaintiff had failed to show

that he was terminated under circumstances giving rise to an

inference of discrimination.

       As to plaintiff’s marital-status-discrimination claim, the

court determined that plaintiff had failed to present any

evidence “that he was terminated because he was either married

or unmarried” or because he was having an affair, or “any

evidence that employees were treated differently based on

whether they were single, married, separated or divorced.”

Instead, the court found that plaintiff presented proof that he

was terminated because management was concerned about the

likelihood of an ugly or messy divorce, which the court held did

not give rise to a marital-status-discrimination claim.




2  The trial court refers to the Co-Director of Operations
position as “Director of Field Operations.”
                                 10
       Plaintiff appealed.   The Appellate Division affirmed the

dismissal of plaintiff’s gender-discrimination claim but

reversed the dismissal of plaintiff’s marital-status-

discrimination claim.    In reversing the dismissal of plaintiff’s

marital-status-discrimination claim, the panel noted that

plaintiff’s appeal raised the issue of the scope of the marital-

status protection under the LAD and interpreted “marital status”

to include the states of being divorced, engaged to be married,

separated, and involved in divorce proceedings.    The appellate

panel found that Redden’s comment that plaintiff was being

terminated because he was going to go through an “ugly divorce”

constituted direct evidence of discrimination and that there was

evidence that plaintiff had been terminated because of negative

stereotypes about divorcing employees.     Therefore, the panel

determined that plaintiff had established a prima facie case of

discrimination based on a change in the status of his

relationship “from married to soon-to-be-divorcing[.]”

       We granted defendants’ petition for certification.     Smith

v. Millville Rescue Squad, 220 N.J. 42 (2014).

                                 III.

                                  A.

       Defendants limit their argument before this Court to

plaintiff’s marital-status-discrimination claim pursuant to the

LAD.    They contend that the Appellate Division erred in finding

                                  11
that plaintiff had established a prima facie claim of marital-

status discrimination.   Defendants submit that plaintiff was

terminated not because of his marital status, but rather because

of the identity and situation of the person he was divorcing --

another MRS employee.    They urge this Court to recognize an

employer’s right to exercise legitimate business judgment to

manage risk and resolve potential or perceived conflicts in the

workplace.   In support of that argument, defendants compare the

employment action in this case to anti-nepotism policies, which

have been deemed lawful under the LAD.    See Thomson v. Sanborn’s

Motor Express, Inc., 154 N.J. Super. 555, 560-61 (App. Div.

1977) (finding employer’s anti-nepotism policy did not violate

LAD’s protection against marital-status discrimination).

    Defendants further argue that the Appellate Division

ignored the LAD’s plain language and adopted a broad definition

of “marital status” that expanded the scope of marital-status

discrimination.   Relying on Thomson, supra, 154 N.J. Super. at

560, defendants argue that “marital status” has always been

defined to mean “either married or single.”

                                 B.

    Plaintiff argues that the Appellate Division did not expand

the definition of “marital status” in the LAD but simply defined

“marital status” according to its common usage to include the

categories of single, married, divorced, and separated.

                                 12
Plaintiff maintains that there was no evidence that his divorce

would have an impact on the workplace and that he was terminated

based on stereotypes about divorcing persons in violation of the

LAD.   Plaintiff further contends that the Appellate Division’s

holding is not inconsistent with prior decisions upholding the

legality of anti-nepotism policies.

       Plaintiff argues that the Appellate Division properly found

that he presented sufficient evidence at trial to defeat

defendants’ motion for involuntary dismissal.    In particular,

plaintiff contends that he established a prima facie case of

marital-status discrimination through his testimony that Redden

had told him that he was terminating plaintiff because he would

be going through an “ugly divorce,” and that if plaintiff had

reconciled with his wife, Redden would not have terminated him.

Plaintiff also emphasizes that he provided direct evidence of

discrimination; therefore, the trial court employed an erroneous

standard to evaluate his evidence, leading to an erroneous

decision to dismiss his marital-status LAD claim.

                                 C.

       Amicus curiae the American Civil Liberties Union of New

Jersey (ACLU-NJ) argues that the LAD reflects New Jersey’s

strong public policy against discrimination and must be

construed “to prohibit discrimination against individuals based

on invidious stereotypes.”    ACLU-NJ urges the Court to interpret

                                 13
the LAD as including “protection against stereotypes related to

an impending marriage or impending divorce.”      In reaching this

conclusion, ACLU-NJ submits that the Court need not make “a

broad pronouncement” about whether the marital-status protection

prohibits an employment action based on the identity of a

complainant’s spouse.   ACLU-NJ argues that the Court can find in

plaintiff’s favor without affecting the legality of anti-

nepotism policies by holding that employers who permit the

employment of spouses may not “thereafter discriminate against

those who are in the process of changing their marital status in

relation to another employee.”

                                 IV.

    The threshold issue before the Court is whether the LAD’s

prohibition against discrimination based on marital status

extends to a person who has separated from their spouse and is

in the process of obtaining a divorce.     This is a question of

law that requires de novo review.      Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

    The LAD identifies several actions taken by an employer

against an employee or prospective employee as unlawful

employment practices.   Those actions include the failure to

employ, the discharge of an employee, or the forced retirement

of an employee based on factors such as race, sex, marital



                                 14
status, national origin, and age.     The employment discrimination

provision of the LAD provides:

              It shall be an unlawful employment
         practice, or, as the case may be, an unlawful
         discrimination:

              a. For an employer, because of the race,
         creed, color, national origin, ancestry, age,
         marital status, civil union status, domestic
         partnership status, affectional or sexual
         orientation, genetic information, pregnancy,
         sex, gender identity or expression, disability
         or atypical hereditary cellular or blood trait
         of any individual, or because of the liability
         for service in the Armed Forces of the United
         States or the nationality of any individual,
         or because of the refusal to submit to a
         genetic test or make available the results of
         a genetic test to an employer, to refuse to
         hire or employ or to bar or to discharge or
         require to retire, unless justified by lawful
         considerations other than age, from employment
         such individuals[.]

         [N.J.S.A. 10:5-12(a) (emphasis added).]

Marital status is not a defined term.

    When the LAD was initially enacted in 1945, it protected

individuals from discrimination based on “race, creed, color,

national origin or ancestry.”    L. 1945, c. 169, § 11.

Discrimination based on marital status first appeared in the LAD

as a prohibited employment practice in 1970, as part of a

comprehensive amendment to the LAD.     See L. 1970, c. 80, § 14.

Marital status was not included in the bill when initially

introduced, see Assembly Bill No. 403, 194th Leg. (N.J. 1970),

but was added prior to the bill’s adoption by the Senate, Senate

                                 15
Amendments to Assembly Bill No. 403, 194th Leg. (April 27,

1970).    We have not identified any documents or statements

specifically addressing the inclusion of this category in the

1970 amendment.    We note, however, that the inclusion of marital

status in the LAD coincided with the attention that

discrimination against women based on their marital status was

receiving, including the commencement of legal proceedings in

various courts challenging the employment practices of some

companies that conditioned hiring and continued employment for

women in certain positions on being single.    See, e.g., Sprogis

v. United Air Lines, Inc., 444 F.2d 1194, 1196-97 (7th Cir.)

(affirming trial court determination that employer committed

unlawful employment practice when it discharged flight attendant

because of her marriage), cert. denied, 404 U.S. 991, 92 S. Ct.

536, 30 L. Ed. 2d 543 (1971).

    New Jersey does not stand alone in barring discrimination

based on marital status.    At least twenty states offer some form

of protection from discrimination based on marital status.       See

Nicole Buonocore Porter, Marital Status Discrimination:     A

Proposal for Title VII Protection, 46 Wayne L. Rev. 1, 15

(2000).    Many states have not defined the term.   See, e.g.,

Conn. Gen. Stat. § 46a-60; Del. Code Ann. Tit. 19, §§ 710, 711.

Other states define “marital status” in their anti-

discrimination statutes but are divided on the scope of the

                                 16
marital-status protection.   Compare, Haw. Rev. Stat. § 378-1

(defining marital status as “the state of being married or being

single”); Neb. Rev. Stat. § 48-1102(12) (defining marital status

as “the status of a person whether married or single”) with,

Colo. Rev. Stat. § 24-34-301(4.5) (“‘Marital status’ means a

relationship or a spousal status of an individual, including but

not limited to being single, cohabitating, engaged, widowed,

married, in a civil union, or legally separated, or a

relationship or a spousal status of an individual who has had or

is in the process of having a marriage or civil union dissolved

or declared invalid.”); D.C. Code § 2-1401.02(17) (“‘Marital

status’ means the state of being married, in a domestic

partnership, single, divorced, separated, or widowed and the

usual conditions associated therewith, including pregnancy or

parenthood.”); 775 Ill. Comp. Stat. 5/1-103(J) (“‘Marital

status’ means the legal status of being married, single,

separated, divorced or widowed.”); Minn. Stat. § 363A.03(Subd.

24) (“‘Marital status’ means whether a person is single,

married, remarried, divorced, separated, or a surviving spouse

and, in employment cases, includes protection against

discrimination on the basis of the identity, situation, actions,

or beliefs of a spouse or former spouse.”); Wash. Rev. Code §

49.60.040(17) (“‘Marital status’ means the legal status of being



                                17
married, single, separated, divorced, or widowed.”); Wis. Stat.

§ 111.32(12) (same).

    To determine the scope and limits of the protection

afforded by the LAD to an employee’s marital status, we must

identify and implement the legislative intent.    State v. Smith,

197 N.J. 325, 332 (2009).   First, the Court must look to the

plain language of the statute as “the best indicator of that

intent[.]”   DiProspero v. Penn, 183 N.J. 477, 492 (2005).      “The

language of the statute must be construed in accordance with its

ordinary and common-sense meaning.”    Saccone v. Bd. of Trs. of

the Police & Firemen’s Ret. Sys., 219 N.J. 369, 380 (2014)

(citations omitted).   If the plain language of the statute is

clear and “susceptible to only one interpretation[,]” then the

Court should apply that plain-language interpretation.

DiProspero, supra, 183 N.J at 492 (citations omitted).    If,

however, “there is ambiguity in the statutory language that

leads to more than one plausible interpretation, we may turn to

extrinsic evidence, ‘including legislative history, committee

reports, and contemporaneous construction.’”     Id. at 492-93

(quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75

(2004)).

    “Because this case involves the LAD, special rules of

interpretation also apply.”   Nini v. Mercer Cty. Cmty. Coll.,

202 N.J. 98, 108 (2010).    When confronted with any interpretive

                                 18
question, we must recognize that “the LAD is remedial

legislation intended to ‘eradicate the cancer of discrimination’

in our society[,]” and should therefore be liberally construed

“in order to advance its beneficial purposes.”   Id. at 115; see

also Saccone, supra, 219 N.J. at 381 (noting that statutes which

are “remedial in character” “should be liberally construed . . .

in favor of the persons intended to be benefited thereby”

(alteration in original) (quoting Geller v. Dep’t of Treasury,

53 N.J. 591, 597-98 (1969))); Lehmann v. Toys ‘R’ Us, 132 N.J.

587, 612 (1993) (“We emphasize that the LAD is remedial

legislation.”).   “[T]he more broadly [the LAD] is applied, the

greater its antidiscriminatory impact.”   Nini, supra, 202 N.J.

at 115 (second alteration in original) (quoting L.W. ex rel.

L.G. v. Toms River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 400

(2007)).   Because discrimination is still a pervasive problem in

the modern workplace, even “novel arguments” advanced by victims

of workplace discrimination “require our utmost care and

attention in order that we may be steadfast in our efforts to

effectuate the Legislature’s goal of workplace equality[.]”

Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 260 (2010).

    Despite the absence of a definition of “marital status” or

legislative history demarcating the boundaries of this

protection, the stated purpose and goals of the LAD strongly

suggest that we should consider “marital status” as more than

                                19
the state of being single or married.   A broader interpretation

is consistent with the remedial purpose of the statute, advances

the goal of “eradication ‘of the cancer of discrimination’ in

the workplace,” Bergen Commercial Bank v. Sisler, 157 N.J. 188,

199 (1999) (quoting Fuchilla v. Layman, 109 N.J. 319, 334, cert.

denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988)),

and prevents employers from resorting to invidious stereotypes

to justify termination of the employment of a never-married

employee, an engaged employee, a separated employee, an employee

involved in divorce litigation, or a recently widowed employee.

    On the other hand, we need not disturb long-settled

precedent that holds that anti-nepotism policies do not violate

the LAD.   Indeed, the distinction between legitimate business

decisions, such as anti-nepotism policies, and impermissible

marital-status discrimination, is illustrated by the two

opinions that have addressed the scope of the “marital status”

protection:   Thomson, supra, 154 N.J. Super. 555, and Slohoda v.

United Parcel Service, Inc., 193 N.J. Super. 586 (App. Div.),

certif. denied, 97 N.J. 606 (1984).

    In Thomson, supra, the defendant employer had a “policy

prohibiting the contemporaneous full-time employment of

relatives in the same department or terminal[.]”   154 N.J.

Super. at 557.   The plaintiff was discharged pursuant to that

policy because her husband worked in the same terminal.    Id. at

                                20
558.    The plaintiff filed a complaint with the Division on Civil

Rights alleging marital-status discrimination in violation of

the LAD, and the Director found for the plaintiff.        Id. at 559.

The employer appealed, and the Appellate Division reversed,

holding that an anti-nepotism policy does not violate the LAD

because the LAD’s “provisions were not designed to prohibit

employment discrimination based upon specific family

relationships[.]”     Id. at 561.   The appellate panel also held

that the employer’s failure to apply the policy consistently did

not affect the determination of the case.        Ibid.   The panel

noted, however, that a plaintiff may have a valid LAD claim if

she can show that “the uneven enforcement of the policy was

conspicuously marked by its consistent application solely for

married relatives as distinguished from other types of

relatives.”   Ibid.

       In Slohoda, supra, the plaintiff employee claimed that “he

was discharged because he was a married man who had a sexual

liaison with a woman other than his wife.”       193 N.J. Super. at

589.    The plaintiff alleged that an unmarried employee would not

have been terminated for similar conduct, suggesting that “the

company policy was that any married management employee who

engaged in sexual activity out of wedlock would be discharged,

but that any unmarried management employee who engaged in sexual

activity would not be discharged.”       Ibid.   The Appellate

                                    21
Division concluded that the plaintiff had a valid claim of

impermissible marital-status discrimination under the LAD,

because the plaintiff presented evidence that the “controlling

factor” in the plaintiff’s termination was his status as a

married person.   Id. at 589-92.    The appellate panel held that,

“if an employer’s discharge policy is based in significant part

on an employee’s marital status, a discharge resulting from such

policy violates [the LAD.]”   Id. at 590.

    We therefore conclude that marital status should be

interpreted to include those who are single or married and those

who are in transition from one state to another.     This

interpretation embraces basic decisions an employee makes during

his or her lifetime.   A person considering marriage or divorce

or confronting the death of a spouse should not fear that a

marriage ceremony, a divorce decree, or a funeral would trigger

a loss of employment or a promised promotion.

    Moreover, the interpretation of marital status that we

adopt today does not interfere with an employer’s legitimate

business judgment and policies regarding its workforce.     An

employer is not prevented from disciplining or terminating an

employee who is inattentive to his job responsibilities or whose

actions disrupt the efficient performance of critical tasks.

Rather, our interpretation prevents an employer from resorting

to stereotypes in its assessment of a potential employee or an

                                   22
existing employee that bear no relation to the employee’s actual

performance in the workplace.    Protecting those employees who

are single, married, or transitioning between those marital

states prevents an employer from engaging in commonplace

stereotypes that a single employee is not committed to his

career or that an engaged employee will be distracted by wedding

preparations, or that a divorcing employee will be distracted

from his job and even disruptive in the workplace, particularly

if the estranged spouse or the spouse’s friends and family are

employed by the same employer.

    The interpretation we adopt today also does not require us

to disturb settled precedent harmonizing the LAD and anti-

nepotism policies.   Employers are free to adopt anti-nepotism

policies, but they may not enforce them unevenly based on

marital status or any other protected class.   Likewise, if an

employer chooses not to have an anti-nepotism policy, and

instead freely employs coworkers who are married or related to

one another, the employer may not thereafter discriminate

against a particular employee whose marriage dissolves.

Conflict may be inevitable among spouses and other family

members, but employers may not base their employment decisions

on stereotypes about how marital conflict will impact the

workplace.

                                 V.

                                 23
                                  A.

     The next issue we must address is whether the trial court

properly evaluated the proofs presented by plaintiff to support

his marital-status-discrimination claim.      An employee who

commences an action seeking redress for an alleged violation of

the LAD “may attempt to prove employment discrimination by

either direct or circumstantial evidence.”3     Sisler, supra, 157

N.J. at 208 (citation omitted).

     In order to establish a prima facie case of employment

discrimination by direct evidence, the plaintiff must produce

evidence “that an employer placed substantial reliance on a

proscribed discriminatory factor in making its decision to take

the adverse employment action[.]”      A.D.P. v. ExxonMobil Research

& Eng’g Co., 428 N.J. Super. 518, 533 (App. Div. 2012)

(alteration in original) (quoting McDevitt v. Bill Good




3 A case established through direct evidence is also referred to
as either a “Price Waterhouse case” or a “mixed-motive case,”
and a case established through circumstantial evidence may be
referred to as a “McDonnell Douglas case” or a “pretext case.”
See Price Waterhouse v. Hopkins, 490 U.S. 228, 277-78, 109 S.
Ct. 1775, 1804-05, 104 L. Ed. 2d 268, 305 (1989) (O’Connor, J.,
concurring) (describing requirements for establishing prima
facie case of discrimination by direct evidence); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824,
36 L. Ed. 2d 668, 677 (1973) (describing requirements for
establishing prima facie case of discrimination by
circumstantial evidence); Fleming v. Corr. Healthcare Sols.,
Inc., 164 N.J. 90, 100-01 (2000) (holding that type of evidence
is determinative in whether case is “McDonnell Douglas or
‘pretext’ case” or “Price Waterhouse or ‘mixed motive’ case”).
                                  24
Builders, Inc., 175 N.J. 519, 527 (2003)).     Direct evidence of

discrimination may include evidence “of conduct or statements by

persons involved in the decisionmaking process that may be

viewed as directly reflecting the alleged discriminatory

attitude.”   Fleming v. Corr. Healthcare Sols., Inc., 164 N.J.

90, 101 (2000) (citation omitted).     Such evidence, “if true,

[must] demonstrate not only a hostility toward members of the

employee’s class, but also a direct causal connection between

that hostility and the challenged employment decision.”       Sisler,

supra, 157 N.J. at 208.    A plaintiff has presented direct

evidence of discrimination if the court determines that “a

statement made by a decisionmaker associated with the

decisionmaking process actually bore on the employment decision

at issue and communicated proscribed animus.”     McDevitt, supra,

175 N.J. at 528 (citing Fakete v. Aetna, Inc., 308 F.3d 335, 339

(3d Cir. 2002)).

    After the plaintiff sets forth “direct evidence of

discriminatory animus, the employer must then produce evidence

sufficient to show that it would have made the same decision if

illegal bias had played no role in the employment decision.”

Fleming, supra, 164 N.J. at 100 (quoting Jackson v. Ga.-Pac.

Corp., 296 N.J. Super. 1, 18 (App. Div. 1996), certif. denied,

149 N.J. 141 (1997)).     In other words, once a plaintiff shows

that an employer had a discriminatory animus, the employer has

                                  25
“only an affirmative defense on the question of ‘but for’ cause

or cause in fact.”    Ibid. (quoting Jackson, supra, 296 N.J.

Super. at 18).

       In order to establish a prima facie case of discrimination

through circumstantial evidence, the plaintiff must prove, by a

preponderance of the evidence, the four elements of the

McDonnell Douglas test.    Sisler, supra, 157 N.J. at 209-10

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973)).    A plaintiff alleging

discriminatory discharge must show: “(1) that plaintiff is in a

protected class; (2) that plaintiff was otherwise qualified and

performing the essential functions of the job; (3) that

plaintiff was terminated; and (4) that the employer thereafter

sought similarly qualified individuals for that job.”     Victor v.

State, 203 N.J. 383, 409 (2010) (citing Clowes v. Terminix

Int’l, Inc., 109 N.J. 575, 596-97 (1988)).

       After the plaintiff has established a prima facie case of

discrimination by circumstantial evidence, the employer is given

the opportunity to rebut the presumption of discrimination “with

admissible evidence of a legitimate, non-discriminatory reason

for its rejection of the employee.”    Sisler, supra, 157 N.J. at

210.    If the employer has succeeded in rebutting the presumption

of discrimination, the burden shifts back to the plaintiff to

establish by a preponderance of the evidence that the employer’s

                                 26
proffered reason for the termination was in fact a pretext for

discrimination.   Id. at 211.

    The key difference between a direct-evidence case and a

circumstantial-evidence case is “the kind of proof the employee

produces on the issue of bias.”    Starceski v. Westinghouse Elec.

Corp., 54 F.3d 1089, 1097 (3d Cir. 1995).     Simply put, the

employee must set forth “more direct evidence” in a direct-

evidence case than in a McDonnell Douglas case involving

circumstantial evidence.   Id. at 1096 n.4.   “[D]irect evidence

of intentional discrimination is hard to come by[,]” so the

McDonnell Douglas test was developed to permit employees to

prove discrimination using circumstantial evidence.    Sisler,

supra, 157 N.J. at 209-10 (quoting Price Waterhouse v. Hopkins,

490 U.S. 228, 271, 109 S. Ct. 1775, 1802, 104 L. Ed. 2d 268, 301

(1989) (O’Connor, J., concurring)).

    In the rare case in which there is direct evidence of

discrimination, “the McDonnell Douglas analysis does not apply.”

A.D.P., supra, 428 N.J. Super. at 533 (citing Healey v.

Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996);

Snyder v. Norfolk S. Ry. Corp., 463 F. Supp. 2d 528, 534 (E.D.

Pa. 2006), aff’d, 271 Fed. Appx. 150 (3d Cir. 2008)); see also

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105

S. Ct. 613, 621-22, 83 L. Ed. 2d 523, 533 (1985) (stating, in

connection with claim under Age Discrimination in Employment

                                  27
Act, 29 U.S.C.A. §§ 621 to 634, that “the McDonnell Douglas test

is inapplicable where the plaintiff presents direct evidence of

discrimination”).   “[T]he production of direct evidence of

unlawful discrimination destroys ‘the . . . presumption of good

faith concerning . . . employment decisions which is accorded

employers facing only circumstantial evidence of

discrimination.’”   Sisler, supra, 157 N.J. at 209 (quoting Price

Waterhouse, supra, 490 U.S. at 265-66, 109 S. Ct. at 1799, 104

L. Ed. 2d at 297-98 (O’Connor, J., concurring)).   Accordingly,

“direct evidence of discriminatory animus leads not only to a

ready logical inference of bias, but also to a rational

presumption that the person expressing bias acted on it.”

Starceski, supra, 54 F.3d at 1097.

                                B.

    In reviewing a motion for involuntary dismissal under Rule

4:37-2(b) or a motion for judgment under Rule 4:40-1, we apply

the same standard that governs the trial courts.   ADS Assocs.

Grp. v. Oritani Sav. Bank, 219 N.J. 496, 511 (2014); Frugis v.

Bracigliano, 177 N.J. 250, 269 (2003).   Both motions are

governed by “the same evidential standard: ‘if, accepting as

true all the evidence which supports the position of the party

defending against the motion and according him the benefit of

all inferences which can reasonably and legitimately be deduced

therefrom, reasonable minds could differ, the motion must be

                                28
denied[.]’”   Verdicchio, supra, 179 N.J. at 30 (quoting Estate

of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).    The motion

should only “be granted where no rational juror could conclude

that the plaintiff marshaled sufficient evidence to satisfy each

prima facie element of a cause of action.”    Godfrey v. Princeton

Theological Seminary, 196 N.J. 178, 197 (2008).

                                 VI.

    Applying the above-stated principles to the instant case,

we affirm the appellate panel’s decision that the trial court

erred in granting defendants’ motion for involuntary dismissal.

    Here, the facts asserted by plaintiff, if assumed to be

true, demonstrate that plaintiff was discharged “in significant

part” based on his marital status.     Slohoda, supra, 193 N.J.

Super. at 590.   Plaintiff was not merely terminated because of

the identity of his spouse, an MRS employee.    Plaintiff was

terminated based on his employer’s stereotypes about the impact

his divorce might have on the work performance of him and

others.    Plaintiff testified that Redden’s statements revealed

his concern that the Smith divorce would be an “ugly divorce,”

even though there was apparently no evidence supporting Redden’s

concern.    In fact, plaintiff testified that his divorce was

amicable and not at all “ugly.”    Plaintiff also stated that

Redden told him that if he and his wife had been able to

reconcile, plaintiff would not have been terminated.    Defendants

                                  29
were not enforcing an anti-nepotism policy -- in fact,

defendants openly permitted plaintiff and his wife to work

together -- but instead terminated plaintiff because of

invidious stereotypes about divorcing persons.    Such

discrimination is unlawful under the LAD.

     The trial court went awry when it evaluated plaintiff’s

marital-status-discrimination claim through the prism of the

McDonnell Douglas circumstantial-evidence analysis rather than

the direct-evidence analysis.    To be sure, some of the evidence

presented by plaintiff does tend to establish unlawful

discrimination by circumstantial evidence.    Plaintiff testified

at length about his employment history, including promotions,

regular pay increases, and the lack of any criticism or poor

performance evaluations.   Plaintiff also highlighted his ability

to control costs while maintaining the quality of the services

provided by MRS.   Moreover, there was not a shred of evidence

that plaintiff’s separation from his co-employee wife caused any

disruption in the workplace.    In fact, the evidence presented by

plaintiff, which the trial court was obliged to accept as true,

revealed that the divorce was prosecuted amicably and swiftly.4




4  Indeed, although the trial court erred in failing to evaluate
plaintiff’s case under the direct-evidence framework, our review
of the trial record indicates that there was sufficient evidence
for plaintiff to survive a motion for judgment under the
circumstantial-evidence analytical framework.
                                 30
    Plaintiff, however, also presented direct evidence of

discrimination, but the trial judge failed to evaluate the

sufficiency of that evidence to avoid an involuntary dismissal.

Plaintiff’s case included Redden’s facially discriminatory

statements about divorcing persons, which clearly signaled that

plaintiff was fired because of the demise of his marriage.

Redden’s statements in June 2005 and February 2006 reveal not

only his displeasure about plaintiff’s fractured marriage but

also his reliance on stereotypes about the manner in which

divorcing employees conduct themselves in the workplace.     Redden

told plaintiff that he believed plaintiff and Mary would be

undergoing an “ugly divorce” and that, had plaintiff been able

to reconcile with his wife, he would not have been terminated.

    Having submitted direct evidence of discrimination,

plaintiff was not required to satisfy the four McDonnell Douglas

factors for establishing a prima facie case of discrimination

based on circumstantial evidence.    A.D.P., supra, 428 N.J.

Super. at 533 (citations omitted).    Viewing that direct evidence

in the light most favorable to plaintiff, the trial court should

have denied defendants’ motion and permitted the jury to render

a verdict on plaintiff’s marital-status-discrimination claim.

                              VII.

    In summary, we conclude that the LAD prohibits an employer

from discriminating against a prospective employee or a current

                               31
employee because they are single, married, or transitioning from

one state to another.     The LAD aims to “discourage the use of

categories in employment decisions which ignore the individual

characteristics of particular applicants.”     Sisler, supra, 157

N.J. at 204 (quoting Ogden v. Bureau of Labor, 682 P.2d 802, 810

(Or. Ct. App. 1984), aff’d in part and rev’d in part, 699 P.2d

189 (Or. 1985)).     It does not, however, prohibit employers from

considering factors that “relate to the demonstrated needs of

the employer and the actual capabilities of an individual to

perform the job.”     Ibid. (quoting Ogden, supra, 682 P.2d at

810).   Therefore, the LAD does not prohibit an employer from

firing an employee who is engaged in a dispute -- marital or

otherwise -- that has become so contentious that it interferes

with his or other employees’ ability to carry out their work.

    Here, Redden’s statements clearly give rise to an inference

of discrimination.     Furthermore, accepting plaintiff’s evidence

as true, Redden’s remarks demonstrate not only that Redden was

biased against divorcing persons, but also that Redden’s animus

towards divorcing persons “actually bore on the employment

decision at issue[.]”     McDevitt, supra, 175 N.J. at 528

(citation omitted).     Therefore, the trial court erred in finding

that plaintiff failed to establish that he was terminated under

circumstances that give rise to an inference of discrimination.



                                  32
                             VIII.

    The judgment of the Appellate Division is affirmed.



     CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE
FERNANDEZ-VINA did not participate.




                              33
