You cannot consider an applicant’s or employee’s marital status when making hiring and firing decisions or other decisions that affect the terms and conditions of employment. It’s also unlawful to ask a job applicant to disclose their marital status.

You cannot condition fringe benefits or other employment decisions on whether the employee or prospective employee is considered a “principal wage earner” or “head of household.” Similarly, you cannot use job responsibilities, such as travel or customer entertainment, as justification for discrimination under this category.

You cannot generally impose a rule that prohibits employment of spouses. However, you can refuse to place one spouse under the direct supervision of the other or to place both spouses in the same department, division or facility if you can show a business reason relating to supervision, safety, security or morale,2 or if the work involves potential conflicts of interests or other hazards greater for married couples than for other people.3 In addition, state regulations make exceptions for fringe benefits, such as health insurance plans, permitting you to avoid unnecessary double coverage of both spouses.

Laws prohibiting marital status discrimination are meant to protect classes of people (married people, single people, divorced people, etc.); these anti-discrimination laws don’t extend to the status of being married to a particular person.

In a recent case, an employee who worked at the same company for over 20 years was fired by his mother-in-law, the company CEO, after marital difficulties arose between the employee and his wife, the CEO’s daughter. The employee sued for marital status discrimination, arguing he was unfairly fired after the CEO sided with his wife (her daughter). The court rejected his claim: He wasn’t fired because of his status of being married. It was who he was married to — the CEO’s daughter — that led to the discharge, not his marital status. This is not marital status discrimination.4

California recognizes same-sex marriages as lawful.5 In addition, the U.S. Supreme Court held that the due process and equal protection clauses of the 14th Amendment guarantee the right of same-sex couples to marry.6 Moreover, in a separate decision, the United States Supreme Court ruled that defining the term “spouse” under federal law to exclude same-sex unions is unconstitutional and violates the equal protections afforded by the Fifth Amendment of the Constitution.7

Registered Domestic Partnership

Registered domestic partners are defined as any two adults over the age of 18 who have registered their relationship with the California Secretary of State.

Where California law prohibits discrimination on account of marital status — for example one’s status as a spouse or as a party to marriage — it must be inferred that a similar prohibition exists against discrimination on account of participation in a domestic partnership, past or present.

Extending this reasoning further, it would be unlawful to retaliate against an employee for objecting to discrimination on account of participation in a domestic partnership, or to establish a “no employment of registered domestic partners” rule, subject to the exceptions described in the section on discrimination related to Marital Status, above.

In administering benefits programs, an insurer may require proof of registered domestic partnership status or termination of that status, but only if the insurer also requests verification of marital status and notification of dissolution of the marriage from an employee whose spouse is provided coverage.

1. Govt. Code sec. 12940(a)