Marital Status Discrimination: First Comes Love . . . Then Comes Marriage . . . Then Comes Preferential Treatment at Work?

Delaware has long since included “marital status” in its list of categories (along with race, sex, gender, religion, and sex) protected by the state’s anti-discrimination statute. But what is marital status discrimination? Does it really occur, and has an employee ever filed a claim based on alleged marital status discrimination? A new Policy Briefing from the Sloan Work and Family Research Network (pdf) gives some insight into this area of discrimination rarely discussed.

Marital-status discrimination occurs when a person is granted or denied rights based on his or her marital status. It appears there is no written decision in Delaware where an employee has claimed discrimination based on his or her marital status. Several cases have been brought in other jurisdictions and they give Delaware employers a bit of insight into their potential exposure under the statute. As noted in the Policy Paper, cases have been brought by a male employee alleging he was denied a promotion because he was unmarried, and a single mother who alleged she was discriminated against based on her unmarried status.

Studies have shown that employers often treat employees differently based on their marital status in the following ways:

– Married men are paid more and offered promotions more than single men (even when controlling for work performance and seniority);

– Employers may subsidize health benefits for spouses and sometimes domestic partners, but no offer no additional compensation for single employees;

– Work-family policies are often written to address married employees with children; and
– Unmarried and single workers without children are expected to travel more for work; they also feel that they have to work at times that are not expected for working parents. In addition, parents are more likely to get time off from work than nonparents.

It is interesting because many of these differences seem to relate more to parental status, rather than marital status. Indeed, a divorced or unmarried worker with child-care responsibilities may well be afforded accommodations in the workplace based on these responsibilities that a childless worker is not. Because parental status is not a protected category (although assumptions about a worker’s performance because of their childcare responsibilities may present a sex discrimination claim under Title VII), an employer may be able to defend a claim by presenting evidence that differential treatment was not the result of marital status, but parental or caregiver status.

Nevertheless, an employer would still face exposure if single employees were not afforded the same protections and accommodations in the workplace as married employees. With work-life balance remaining a popular topic of discussion, and lots of layoffs resulting in bitter former-employees looking for a payout – we are sure to see more discrimination lawsuits, and more creative causes of action.

So what can you do now to make sure your company is not exposed to marital status discrimination?

1. Expand dependent health care coverage not only to domestic partners, but also to other extended family members or household occupants.

2. Encourage work arrangements such as flexible work schedules and telework for all employees – not just married employees with families. Avoid “work-family” label for policies and instead use “work-life.”

3. Train your human resources officers and managers that marital status should not be considered in any employment-related decision (e.g. hiring or promotion) or staffing/scheduling decisions. For instance, employers should not make the assumption that a married male employee should be promoted over a single one because he will be more dependable, has a mortgage and mouths to feed (or will soon in the future). Nor should the single employee always get the worst shifts or travel schedules because they don’t have a spouse or family at home.

For information about family-responsibilities discrimination, see this previous post:

EEOC Issues “Employer Best Practices for Workers with Caregiving Responsibilities”