Marital Status Discrimination: A Proposal for Title Vii Protection
49 Pages Posted: 31 Jan 2007 Last revised: 22 Feb 2009
This Article proposes amending Title VII of the Civil Rights Act of 1964 to protect marital status discrimination. In doing so, this Article seeks to overcome two injustices in the law. The first injustice is when an employer terminates an employee because the employer disapproves of the employee's marital status for moral reasons. Because such terminations involve invidious and arbitrary decisions by an employer that are not based on the skill or qualifications of an employee, they should be prohibited. However, less than half of the states protect against marital status discrimination, leaving an employee's freedom to be protected from this type of discrimination dependent on the state in which he lives. Even though this is troubling, it is not itself a sufficient reason for protecting marital status under federal law.
Instead, I am more concerned with protecting marital status discrimination because of the effect that companies' "no-spouse" or "anti-nepotism" policies have on women. This Article reveals that when a married couple who works together is or becomes subject to a no-spouse rule (forcing one of them to quit), it is usually the woman who does so. This is because it is most often the woman who earns less money and whose job is seen as second in the couple's relationship (perhaps because of time taken for childbirth and rearing). Because our sex discrimination laws have not adequately protected against the disparate effect no-spouse rules have on women, this Article proposes that marital status be protected under federal law. This Article also proposes that Congress adopt a broad interpretation of marital status because a narrow interpretation (adopted by some states) only prohibits the discrimination if it is based on the "status" of being married. A no-spouse rule might not violate the marital status provision because the rule is seen as discriminating not just because of the status of being married but because of the identity of the spouse. A broad or "identity" interpretation would prohibit no-spouse rules because it would protect against discrimination based on both the status of being married and the identity of an employee's spouse. Finally, because I recognize that there are some situations where employers have a legitimate reason for not wanting married employees working together; this proposed amendment to Title VII would include a bona fide occupational qualification (BFOQ) defense which would allow an employer to prohibit married employees from directly supervising one another.
Keywords: marital status, discrimination, Title VII, employment, sex
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