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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Individual in the Class: Marital Status Discrimination in Employment

A venerable Minnesota statute, given new life by a recent decision of the Minnesota Supreme Court, focuses inquiry on characteristics of the individual rather than the class of those affected in weighing claims of marital status discrimination.  This could have significant impact on an employer’s potential liability for what would be permissible actions in other jurisdictions.

Under every traditional notion, “discrimination” means the mistreatment of a class of people because of some assumed class characteristic.1 For martial status discrimination, this would typically involve discrimination based on assumed characteristics of people who are married, single, or divorced—that is, people who all share the same marital status (as that term is traditionally understood). A survey of discrimination laws across the country bears this out. While not all states prohibit marital status discrimination, virtually all of those that do limit claims to discrimination based on the traditional understanding of marital status.

But there are a few outliers. In two states, Hawaii and Montana, the courts have expanded the definition of marital status discrimination to include the identity or situation of a person’s spouse. Another state, Washington, initially adopted this expanded version, only to have the legislature statutorily reverse the court’s expansion.

More than 20 years ago, Minnesota not only joined, but went a step further than the minority states when the legislature expanded the statutory definition of “marital status discrimination” to include discrimination on “the basis of the identity, situation, actions, or beliefs of a spouse or former spouse.” The amendment removed any requirement that the employer harbor animus toward the institution of marriage or a class of individuals sharing the same marital status as traditionally understood.

Yet, in the two decades that followed, Minnesota courts ignored the amendment and continued to require that marital status discrimination claims involve a direct attack on the institution of marriage. This changed in April 2011. In Taylor v. LSI Corp.,2 the Minnesota Supreme Court discarded the “direct attack on the institution of marriage” requirement. As a result, employers may find themselves accused of marital status discrimination based on actions that have nothing to do with the traditional notions of marital status. This creates significant and unexpected legal exposure for businesses that should be proactive in addressing ways to mitigate these dangers. After Taylor, an employer’s adverse action towards an employee must be based on reasons independent of the identity or circumstance of the employee’s spouse, or to enforce a bona fide occupational qualification. Employers would be well-advised to heed this warning.

To understand how Taylor has changed traditional notions of marital discrimination, consider this hypothetical situation. Imagine your client manufactures specialized and cutting-edge consumer electronics. Your client requires employees sign strict nondisclosure agreements because disclosure of your company’s latest product innovations would allow competitors to quickly develop rival products. Millions of dollars are at stake. One day, your client learns that one of its employees spends hours per day with the chief engineer of the R&D division of a rival company. Fearing that the employee may be disclosing secrets, your client terminates the employee immediately, explaining that it cannot continue to employ her because it has reason to believe she has disclosed trade secrets. While some may disagree with your client’s decision, there is no reason to believe that your client acted out of discriminatory animus—just sheer concern that its employee would knowingly or unknowingly disclose
sensitive trade secrets. Moreover, absent an employment contract stating otherwise, the employer certainly would have the right to terminate the employee.

But what if the head of the rival’s R&D division were the employee’s spouse? Should it affect your client’s exposure to a discrimination lawsuit? After Taylor, it could.

Minnesota’s Statutory Protection

The Minnesota Human Rights Act (MHRA) prohibits marital status discrimination in employment:

Except when based on a bona fide occupational qualification, it is an unfair employment practice for an employer, because of … marital status … to: … (2) discharge an employee; or (3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.

The legislature originally left the term “marital status” undefined, and courts were left to provide substance to the term.4 The first major decision interpreting the term “marital status” was Kraft, Inc. v. State.5 In Kraft, the Minnesota Supreme Court held that an antinepotism rule that denied full-time employment to individuals married to persons already employed full-time by the employer constituted marital status discrimination.6 But an antinepotism policy does not treat people differently based on the traditional notion of marital status. That is, not all married people are subject to the rule. Thus, to reach its conclusion the court “reject[ed] the view that ‘marital status’ . . . does not embrace the identity or situation of one’s spouse.”7 The court stated that this broader definition “reflects the protected status the institution of marriage enjoys in our society.”

Five years later, the Minnesota Supreme Court revisited the definition of “marital status” in Cybyske v. Independent School Dist. No. 196.8 In Cybyske, the court held that the MHRA did not protect a teacher against retaliation based on the political activity of her husband, who was involved with the teacher’s union and had been elected to a neighboring school board. After considering the legislative intent of the MHRA as it then existed, the Cybeske court concluded that the legislature did not intend to protect employees from discrimination based on a particular political posture, whether of an employee or of the employee’s spouse.9 The Cybyske court distinguished Kraft, stating that the antinepotism policy in Kraft was a “direct attack on the husband and wife as an entity,” and “just another way of saying that an employer refuses to hire a married couple.” On the other hand, the alleged immediate reason for the discrimination in Cybyske—the political views of the job candidate’s spouse—was not “directed at the institution of marriage itself, at least not with the same directness and closeness as in Kraft.”10 To hold otherwise, the court reasoned, would mean that “any employer bias or predilection towards a spouse which is imputed to the employee, whether of substance or not, would subject the
employer to a lawsuit.”

After Cybyske, in 1988 the legislature amended the MHRA to define “marital status.”11 That definition, which now appears at Minn. Stat. §363A.03, subd. 24, states:

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 identity, situation, actions, or beliefs of a spouse or former spouse.12

The 1988 amendment not only adopted Kraft’s holding that “marital status embrace[s] the identity or situation of one’s spouse,” but went further, adding that “marital status discrimination” includes discrimination on the basis of the “actions or beliefs” of one’s spouse.13

The amendment’s legislative history demonstrates that the legislature was reacting to Cybyske and wanted to protect an employee from being singled out and punished for her spouse’s political speech. The legislature limited the broader definition to employment cases because the expansion would otherwise force landlords to rent to people whose beliefs they found repugnant, such as a person whose spouse was a polygamist.14 But the legislature intended employment cases, such as Cybyske, come out differently. The legislature wanted to prohibit “employer bias or predilection towards a spouse [or former spouse] which is imputed to the employee,” because of the identity, situation, actions, or beliefs of the spouse or former spouse.15

After the Amendment

After the 1988 amendment, Minnesota courts nonetheless consistently required that, to be actionable, alleged marital status discrimination concern an “attack on the institution of marriage” or “directed at the marital status itself.” This pared back the legislature’s expansion. For example, in Gunnufson v. Onan Corp.,16 an employee alleged marital status discrimination after his employer terminated him because he took leave to attend the funeral of his “father-in-law,” when, in fact, the deceased was the father of his ex-wife (whom he still considered to be his common law wife). Analyzing the claim, the Minnesota Court of Appeals stated “[t]he discrimination must be directed at the marital status itself to violate the Human Rights Act.”17 Because Minnesota courts had recognized marital status discrimination claims include firing someone who is living with, but not married to, a person of the opposite sex, the court concluded the employee had stated a prima facie claim for marital status discrimination.

In 1996, in Kepler v. Kordel,18 the court of appeals again stated that a marital status discrimination claim must constitute a “direct attack on the institution of marriage.” The Kepler decision came well after the amendment to the definition of “marital status” and involved a claim by a husband who alleged he was terminated for hiring his wife in violation of company policy prohibiting the hiring of relatives. In that case, the appellate court affirmed the trial court’s judgment of dismissal, holding:

We do not condone discrimination against a portion of a protected class, i.e., part-time employees already married to full-time employees, because to do so would ignore the broad prohibition against arbitrary classifications embodied in the Human Rights Act. Kraft, Inc. v. State, 284 N.W.2d 386, 388 (Minn. 1979). The alleged discrimination, however, must be directed at the marital status itself to violate the MHRA. Cybyske v. Independent School Dist. No. 196, 347 N.W.2d 256, 261 (Minn. 1984) . . . Nothing in the record implicates Kepler’s marital status as a factor in his discharge. Therefore Kordel’s act of discharging Kepler does not constitute a direct attack on the institution of marriage.19

In 2009, in Savoren v. LSI Corp., a case involving the same defendant as Taylor v. LSI Corp., the court of appeals addressed a marital status discrimination claim for a third time, again concluding that, notwithstanding the amendment, “the alleged marital-status discrimination must be directed at the marital status itself.”20 That court found that “appellant has failed to create a genuine issue of material fact demonstrating that respondent’s action was a direct attack on the institution of marriage . . .  and the district court did not err in granting summary judgment in favor of respondent on this claim.”21

Other Minnesota state and federal district courts continued to cite Cybyske, Gunnufson, and Kepler for the proposition that alleged marital status discrimination must be a “direct attack on the husband and wife as an entity,” or “directed at the institution of marriage itself.”22 Thus, despite the 1988 amendment and the legislature’s apparent desire to expand the definition of “marital status discrimination” in employment cases, Minnesota courts continued to hold that in order to be actionable under the MHRA, alleged discrimination must be “directed at the marital status itself.”

No Direct Attack Required

The requirement that a marital status discrimination claimant prove a direct attack on the institution of marriage ended in 2011 with the supreme court’s decision in Taylor v. LSI Corp.23 In Taylor, plaintiff LeAnn Taylor brought a marital status discrimination claim against her employer, LSI, relating to her termination, which followed the termination of her husband, the former president of LSI. Ms. Taylor alleged that LSI’s CEO stated LSI was terminating her because it would be awkward for her to stay at the company after her husband had been let go.24 She conceded that her termination did not involve a direct attack on the institution of marriage; rather, she argued that Cybyske was overruled by the amendment to the MHRA’s definition of “marital status.” The district court, concluding it was bound by Kepler and the continued requirement of a direct attack on the institution of marriage, granted summary judgment to LSI.25

The court of appeals reversed,26 finding the language of the statute to be unambiguous, and concluded that the “legislature defined ‘marital status’ to expressly include the ‘identity, situation, [and] actions’ of an employee’s spouse.”27 Thus, notwithstanding its prior holdings, the court of appeals held the district court erred by requiring a direct attack on the institution of marriage.

On review by the Minnesota Supreme Court, LSI argued the conjunctive “and” in subdivision 24 (1) requires both discrimination based on the person’s marital status (single, married, etc.) and (2) “includes” within that definition marital status discrimination based on the identity, situation, actions, or beliefs of a spouse or former spouse.28 According to LSI, the legislature’s amendment added two elements to the cause of action: (1) the adverse action must be based on the identity or actions of spouse; and (2) the action must constitute an attack on the institution of marriage.29 LSI argued that the broader reading would result in the absurdity of a discrimination claim without proof that the plaintiff was a member of an impermissible class—changing the focus of antidiscrimination law away from broad categories (e.g., single, married, divorced), which can give rise to demeaning stereotypes, to an individualized factor (marriage to specific person).30

The supreme court rejected these arguments. Instead, the supreme court concluded that the MHRA, on its face, is unambiguous: “Reading each term with its ‘plain and ordinary meaning,’ this statute’s language extends protection against marital status discrimination to include the identity of the employee’s spouse and spouse’s situation, as well as the spouse’s actions and beliefs.”31 The supreme court concluded Minn. Stat. §363A.08, subd. 2, in conjunction with Minn. Stat. §363A.03, subd. 24, does not require a plaintiff to show that termination was “directed at the institution of marriage” in order to establish a marital status discrimination claim. The court relegated Kepler and Gunnufson to a footnote, in which the court stated the cases were not controlling because “neither case directly addressed the new definition of ‘marital status.’”32

A Unique Definition

Taylor makes Minnesota an outlier in defining marital status discrimination. Twenty-two states and the District of Columbia prohibit discrimination based on marital status in some form. Of these, no state has enacted a statutory definition of “marital status” similar to that adopted by the Minnesota Legislature extending discrimination to include the identity, situation, actions, or beliefs of a spouse.33

To the contrary, states have explicitly rejected the broader view of marital status discrimination as being inconsistent with traditional notions of discrimination. For example, the Alaska Supreme Court held that “[e]xtending the reach of anti-discrimination law to employment decisions based on to whom a person is married would change the focus of the law from discrimination based on broad categories, which can give rise to demeaning stereotypes and biases, to highly individual factors.”34 Similarly, the Michigan Supreme Court concluded that, “[t]he relevant inquiry is if one is married rather than to whom one is married.”35 These states adhere to the common notion of martial status discrimination, prohibiting employers from taking adverse actions directed at classes of individuals.

Moreover, as explained by the California Court of Appeals in Chen v. County of Orange,36 “conduit cases,” described as cases where the plaintiff is the object of adverse action because of something about his or her spouse—except for those involving an unlawful animus against the spouse such as race discrimination—have been “universally met with rejection as valid marital status discrimination claims.” The “best explanation” for this rejection is that marital status is irrelevant to the adverse action taken by the employer; what the employer cares about is the substantive relationship between the plaintiff and someone else, whether spouse, romantic partner or friend. Section 363A.03, subd. 24, as interpreted by the Minnesota Supreme Court, takes the contrary view.

Even in the two states still using the broader definition of “marital status,” the cases still focus on whether the employer terminated the employee because of his or her membership in a protected class—even if the protected class is narrowly defined because it considers the identity of the plaintiff’s spouse. That is, the employer’s decision must turn on the fact that the plaintiff is married to another person, as opposed to having some other type of relationship. For example, if an employee may be terminated because of marriage to a supervisor, but not if the employee and supervisor are cohabitating, it constitutes marital status discrimination because the employee is treated differently due to the marriage.37 In such a situation, the employer is not understood to harbor any animus toward any one traditional marital status class, but to have treated the employee differently based on the employee’s status as a married or single person.

Minnesota’s definition is broader, potentially prohibiting the employer from terminating the employee in situations where a single person would be. For example, in our hypothetical situation, the client may well have terminated the employee even if her relationship was entirely platonic. But if the couple is married and the client acts at least in part due to the spouse’s identity and situation, the action could constitute marital status discrimination. In this context, marital status discrimination is found by an individualized analysis, as opposed to one based on distinctions between classes. If anything, the policy grants greater protections to married individuals than those who are single or divorced (who, in our hypothetical, could be freely terminated). In our hypothetical, the employer’s attitude toward the institution of marriage or traditional notions of “marital status” (i.e., married, divorced or single) would be irrelevant.

Pitfall for Employers

Minnesota’s status as an outlier creates an area of potential liability for employers where they likely do not expect it. This raises the importance of the available defenses—and the corresponding methods of protecting against this potential pitfall.

The primary defense in this situation would be the existence of a bona fide occupational qualification (BFOQ) as predicate for the termination decision. The BFOQ defense provides that an employer may discriminate on the basis of some characteristic if the qualification is reasonably necessary to the normal operation of a particular business or enterprise.38 Not every conceivable qualification fits within this definition. Rather, the qualification must be “compelling,” “overriding,” or related to the essence of a job. It must be more than merely job-related.39 This does not mean that the qualification must apply to every aspect of the job. BFOQs also include qualifications necessary to perform necessary tasks for the job. For example, an employer may rightfully prohibit a husband and wife from working in a supervisor-subordinate role.40

The existence of this potential defense highlights the need for businesses to specifically state and enforce the job qualifications necessary to perform each job. In the hypothetical situation, the employer may be able to reduce the potential liability by having an explicit qualification that prohibits an employee from cohabitatin g with someone who works for a competing company. Such a policy could be supported by the company’s legitimate need to protect confidential information. Had the client had such a policy in our hypothetical, the client’s motivation for termination would be enforcement of its preexisting policies, not the identity or situation of her spouse.41

Attorneys should advise their clients to implement policies and job qualifications that will protect clients from unwittingly committing marital status discrimination. For clients, this means that they should consider what types of acts they would be concerned about their employees engaging in and make those qualifications of the job. Provided that these qualifications are sufficiently related to the job, they will add a layer of protection to businesses.

Conclusion

Whether one considers it a virtue or a mistake, the legislature’s long-ignored amendment, as revived by the Taylor decision, represents a fundamental departure from the traditional concept of marital status discrimination. This makes Minnesota unique among all other states considering the issue. Attorneys representing either employers or employees would be well-advised to heed this change, as it could have a significant impact on an employer’s potential liability for what would be permissible actions in other jurisdictions.

Courtland Merrill is a partner at the Minneapolis law firm of Anthony Ostlund Baer & Louwagie P.A. His practice focuses exclusively on business litigation across multiple industries on behalf of both plaintiffs and defendants.

Cory Olson is an associate with Anthony Ostlund Baer & Louwagie P.A. His practice focuses on commercial litigation issues, including shareholder and partnership litigation, corporate governance, business torts, employment and real estate cases.

 

Notes

 

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