I’m a big fan of marriage; It has definitely been good to me.
But marriage does not always mean it is good for a company … at least when it comes to hiring, preemployment inquiries, or every day operations.
Employers, however, that do not understand when they can or cannot make hiring and firing decisions based on marital status run the risk of paying out to the happy couple a money judgment or settlement for marital discrimination.
Preemployment Inquiries about Marital Status.
Under federal law employers are generally not prohibited from asking questions regarding marital status (but such inquiries may constitute evidence of unlawful discrimination unless otherwise explained). Michigan law is different and employers are expressly prohibited from asking such preemployment inquiries, unless the employer can establish a bona fide occupational qualification for the inquiry. MCL 37.2206. Specifically, the Michigan Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.) prohibits discrimination in hiring based on, among other criteria, marital status.
Marital Status and Workplace Restrictions Against Hiring a Spouse.
Despite the above restrictions, under Michigan law employers may enforce anti-nepotism policies that prohibit hiring relatives – natural or through marriage – of a current employee. Such policies will not generally constitute discrimination on the basis of marital status in violation of the ELCRA.
So what is the difference between unlawful discrimination based on marital status and lawful discrimination based on workplace restrictions against hiring a spouse?
Essentially the Michigan Supreme Court has said that the difference is one of stereotypes: A “no-spouse” rule is not discrimination on the basis of marital status but rather “different treatment based on the fact that one’s spouse works in the same place as the applicant” and this is “not discrimination based on a stereotypical view of the characteristics of married or single persons.” Whirlpool Corp v Michigan Civil Rights Comm’n (1986).
Can an Employer’s Anti-Nepotism Policy Force Married Employees to Quit?
A situation may arise, however, where two employees marry after having been hired. In that situation a company’s anti-nepotism policy restricting spouses from working together may lawfully require one of the spouses to resign or transfer. But as explained below, the policy cannot have an adverse impact on males or females, i.e., it must be applied in a nondiscriminatory manner.
The Take-away for Employers.
Under Michigan law employers are prohibited from discriminating in hiring based on marital status. But this prohibition will generally not extend to anti-nepotism policies that prevent spouses from working for the same employer. Accordingly, an employer can refuse to hire a spouse of a current employee and that anti-nepotism policy may also compel a spouse to resign or transfer.
To be valid, however, it is important for employers to apply such policies evenhandedly and to make sure the policy does not have an adverse impact on males or females. One way to meet this last criteria is to allow each couple to decide which one would transfer or terminate.