What is marital status discrimination?

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Question:

My husband and I work at the same company. A supervisory position in his department just opened up, and I want to apply for it. But my manager told me the company has an anti-nepotism policy that prohibits spouses from working together or supervising each other. Can they adopt a policy like this? I thought discrimination based on marital status was illegal. 

Answer:

Whether or not marital status discrimination is illegal depends on the laws of your state. Federal law doesn't prohibit discrimination on the basis of an employee's or applicant's marital status. However, almost half of the states and the District of Columbia have outlawed this type of discrimination. 

Even if your state prohibits discrimination based on a person's marital status, however, it isn't clear that your employer has violated the law. Many states distinguish between decisions based on an employee's status (that is, whether the emnployee is married) and decisions based on whom the employee is married to. The first type of discrimination is always illegal. In other words, an employer may not make job decisions based on whether an employee is married, single, divorced, or widowed, or whether an employee is the head of a household. So, if your employer had said, "this job requires a lot of travel, so we'd prefer to hire someone without any family responsibilities," or your employer refuses to promote anyone who is married or divorced, that would clearly be marital status discrimination. 

However, your employer's decision seems to be based on your spouse's identity: It doesn't want one spouse supervising another. Generally, the legality of this type of anti-nepotism policy depends on the reasons for it. If an employer flatly banned spouses from working at the same company, even if they had no interaction with each other at work, that could be discrimination based on marital status. For example, if company policy prohibited the hiring of any spouse of a current employee for any position, a court might strike it down. However, more narrow policies that serve a legitimate purpose are often upheld. For example, a policy that prohibits one spouse from reporting to another is likely intended to maintain employee morale and productivity, and to ensure that other employees in the department feel fairly treated. This type of policy is much more likely to pass legal muster. 

If your state prohibits marital status discrimination (select your state from our Discrimination page to find out), speak to an experienced local employment lawyer to find out how state courts have interpreted the law. If policies prohibiting nepotism have generally been allowed, it's likely time to look for promotional opportunities in a different department. 

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