On appeal from Superior Court, Law Division, Passaic County.
Antell, Joelson and McElroy. The opinion of the court was delivered by Joelson, J.A.D.
[193 NJSuper Page 588] Plaintiff brought action against United Parcel Service, Inc. (UPS) and several persons in its management personnel. The first count of the six-count complaint alleged that plaintiff had been discharged because of his marital status in violation of N.J.S.A. 10:5-3, N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12 a. Under N.J.S.A. 10:5-12 a, an employer is prohibited from refusing to employ or from discharging from employment any individual because of "race, creed, color, national origin, ancestry, age, marital status, sex or atypical cellular blood trait." Defendants made a motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment.
The record reveals that after considering the briefs and hearing oral argument, the trial judge stated: "The motion for summary judgment is granted." However, the order which he signed and from which plaintiff has appealed dismissed the complaint "for failure to state a claim upon which relief could be granted."
We note that although defendants' answer raised a separate defense that the complaint failed to state a claim upon which relief may be granted, defendants obtained extensive discovery before making their motion, the granting of which is the subject matter of this appeal. Furthermore, the briefs submitted to the trial court on the motion abound with references to pretrial depositions. Under R. 4:6-2(e), if on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, "the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46." Despite the lack of reference to R. 4:6-2(e) by either the trial judge or counsel, we shall treat the order under appeal as an order granting summary judgment. On that basis, we find that summary judgment was inappropriate, and we reverse and remand.
Plaintiff's claim essentially is that he was discharged because he was a married man who had a sexual liaison with a woman other than his wife. He alleges that his services would not have been terminated by defendant if he had been unmarried. Thus, his contention is 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. Under such a policy, although the employee's illicit sexual relationship would be a factor in the discharge, the controlling factor would be the employee's married status. Put another way, the company would not discharge an employee who engaged in illicit sexual activity unless such employee is
married. We are of the opinion that under such circumstances the discharge would result from the employee's marital status.
We hold 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 N.J.S.A. 10:5-12 a. By analogy, if an employer has a policy that it will discharge any female employee who engages in an illicit relationship out of wedlock, but will not discharge any male employee who does so, that policy would violate the statutory prohibition against discriminatory hiring or firing practices based on a person's sex. Similarly, if blacks, but not whites, were to be discharged because of sexual activity outside of wedlock, such discharges would be impermissible because based on color. The only difference between the analogous examples and the case now before us is that in the instant case the invidious distinction was made on the basis of marital status rather than on the basis of sex or color.
We have earlier stated that an employment or discharge policy based in significant part on marital status is violative of N.J.S.A. 10:5-12 a. There are cases, not cited in the briefs submitted to us, which amply sustain that statement. Thus, in Harvard v. Bushberg Bros., 137 N.J. Super. 537 (App.Div.1975), certif. granted 71 N.J. 493 (1976) (dismissed by stipulation), we said: "If discrimination on the basis of sex played at least a part and was a causal factor in the failure of complainant to be given the job of credit manager, discrimination in violation of the statute has been established." Id. at 540. In King v. Laborers Internat. U. of No. America, U.L. No. 818, 443 F.2d 273 (6 Cir.1971), the court decided that "where it can be shown that discrimination . . . was, in part, a causal factor in a discharge or refusal to hire . . ., the aggrieved party is statutorily entitled to damages of lost compensation." Id. at 279. There the court was dealing with the Federal Civil Rights Act of 1964. See also Laugesen v. Anaconda Co., 510 F.2d 307, 316-317 (6 Cir.1975); cert. den. sub nom. Fugate v. Hathaway,
The excerpts in plaintiff's appendix from the depositions of various members of UPS management do not clearly spell out the company policy or why plaintiff was discharged. However, upon reading the record of the oral argument before the trial judge as well as defendants' brief to us, we find the argument advanced that the company could terminate plaintiff's employment because of his "adultery." At the time of argument on the motion before the trial judge, defendants' counsel emphasized the distinction between fornication and adultery, contending that "single people living together and having sexual relations are not engaged in conduct which is deemed as morally wrongful as adultery." In the brief submitted to us on behalf of defendants, counsel again argues that "[o]ur society, rightly or wrongly, has distinguished steadily between fornication and adultery."*fn1 Counsel then adds: "Unless some law forbade this, UPS's management was ...