Thompson v. BOARD OF TRUSTEES, SCH. DIST., ETC.

No. 80-344

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

1981

JAMES THOMPSON a n d WILLIAM BOISVERT,

P l a i n t i f f s and A p p e l l a n t s ,

BOARD OF TRUSTEES, SCHOOL DISTRICT NO. 12,
HARLEM, BLAINE COUNTY, MONTANA,

D e f e n d a n t and R e s p o n d e n t .

Appeal from: District Court of t h e Twelfth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f B l a i n e
H o n o r a b l e B. W. Thomas, J u d g e p r e s i d i n g .

Counsel o f Record:

For Appellants:

Weber, Bosch, Kuhr, Duqdale, Warner & M a r t i n , Havre,
Montana
J o h n Warner a r g u e d a n d Mary V a n B u s k i r k , H a v r e , Montana

For Respondent:

Donald Ranstrom, County A t t o r n e y , a r g u e d , C h i n o o k , Montana

F o r Amicus C u r i a e :

F r e d e r i c k F. Sherwood, Human R i g h t s D i v i s i o n , H e l e n a ,
Mont na
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Submitted: March 2 5 , 1981

Decided: M Y 6, 1 9 8 1
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Filed : ~fiu
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

William Boisvert appeals from a summary judgment entered
against him in favor of the defendant Board of Trustees,
School District No. 12, Harlem, Blaine County, Montana, by
the Twelfth Judicial District Court, Blaine County.
The issue determined by us in this appeal is the meaning
of the term "marital status" as used in the Human Rights
Act, sections 49-2-101, et seq., MCA, and the Governmental
Code of Fair Practices, sections 49-3-101, et seq., MCA.
William Boisvert, as high school principal for the
defendant school board, and James Thompson, as superintendent
of schools, filed a joint complaint alleging that the school
board employment policy was discriminatory to them because
of their marital status.
Boisvert had been employed by the school board for 13
years. For the last 2 of those years, he had been the
principal of Harlem High School. Before that he was a
teacher. He is married to a tenured teacher employed for
several years at the junior high school by the school board.
James Thompson had been employed by the school board
for 22 years; the first 6 years as a teacher; the next 13
years as an elementary school principal; and for the last 3
years as superintendent of schools. His wife is also a
tenured teacher in the Harlem school system.
On October 16, 1979, the school board adopted a policy,
to be effective July 1, 1980, incorporated in the following
resolution:
"That all school administrators of the Harlem
Public Schools shall not have a spouse employed
in any capacity in the Harlem school system."
On December 19, 1979, the school board terminated James
Thompson's employment as superintendent and reduced in rank
William Boisvert from high school principal to classroom
teacher. The sole reason given by the school board for
Thompson's termination and Boisvert's reduction in rank was the
policy as set forth in the resolution.
In their complaint, Thompson and Boisvert alleged
that the school board's action was discriminatory. They
requested the District Court to enjoin the school board from
so acting with respect to their employment, and to determine
that the school board resolution was void as contrary to law.
The school board filed a motion for summary judgment
after the court had denied plaintiffs' motion for an injunction
pendente lite. The District Court granted the motion for
summary judgment on August 12, 1980 and judgment thereon was
entered on August 26, 1980. William Boisvert timely appealed.
This appeal turns on the meaning of the term "marital
status", as it appears in the governing statutes, section
49-2-303 (1)(a) and 49-3-201 (I), MCA.
Section 49-2-303(1) (a) reads in part as follows:
"(1) It is an unlawful discriminatory practice
for:
"(a) an employer to refuse employment to a
person, to bar him from employment, or to
discriminate against him in compensation or
in a term, condition, or privilege of employ-
ment because of his ... marital status. . ."
Section 49-3-201 (1) reads in part:
"State and local government officials and
supervisory personnel shall recruit, appoint,
assign, train, evaluate, and promote
personnel on the basis of merit and qualifications
without regard to . ..marital status . . ."
In reaching its decision, the District Court decided
two subissues: (1) that under the statutes, the resolution
of the school board cannot be defended or supported on the
basis of justification or reasonable grounds for its action,
and (2) that the legislature intended the term "marital
status" to be defined as the "state of being married, unmarried,
divorced, or widowed." Using that definition, the District
Court determined that the policy adopted by the school board
did not require a person to have any particular marital
status in order to qualify for employment or to retain
employment.
We find that the term "marital status" should be more
broadly interpreted to accomplish the legislative objective
of removing discrircirz~torypractices in employment and therefore
reverse the District Court.
We look first at the school board's contention that the
policy was adopted without discriminatory intent, and that
their policy could be defended as "based on reasonable
grounds. "
The school board argues that section 49-2-308(1) governs.
That section reads as follows:
"It is an unlawful discriminatory practice for
the state or any of its political subdivisions:
(1) to refuse, withhold from, or deny to a
person any local, state, or federal funds, services,
goods, facilities, advantages, or privileges
because of .
. . marital status ...unless
based - reasonable grounds."
on
The clause "based on reasonable grounds" does not
appear in section 49-2-303(1)(a), MCA, nor in section 49-3-
201 (1), MCA, which we have quoted above. The ~istrictCourt
noted that both sections 49-3-303 and 49-2-303, relate
directly to discriminatory practices in "employment". On
the other hand, in section 49-2-308, above quoted, the word
"employment" is not mentioned in the statute which allows for a
possibly discriminatory practice if it is "based on reasonable
grounds". On that distinction, therefore, the District
Court concluded, and we agree, that insofar as "employment"
is concerned, the legislature has not provided a justification
basis for a discriminatory practice in employment on "reasonable
grounds." In so construing the statutes, the District Court
ascertained and declared their substance from the plain
meaning of the words used, and found no reason to insert
what had been omitted by the legislature in determining the
legislative intent. Chennault v. Sager (1980), Mont .
, 610 P.2d 173, 37 St.Rep. 857; Haker v. Southwestern
Ry. Co. (1978), 176 Mont. 364, 578 P.2d 724.
However, we do not agree with the District Court's
interpretation of the term "marital status" used in
the antidiscriminatory employment statutes.
In construing statutes, whether or not they are in
derogation of common law, we are required to construe their
provisions liberally, and all proceedings under them, with a
view to effect their objects and to promote justice. Section
1-2-103, MCA. The term "marital status" is not defined
anywhere in the statutes relating to antidiscriminatory
employment practices, and our interpretation of the term
should be directed to promoting the objectives of these
statutes. We therefore hold that a liberal definition of
the term "marital status" as used in those statutes, includes
the identity and occupation of one's spouse. Both statutes
are strongly worded directives from the legislature prohibiting
employment discrimination and encouraging public employers
to hire, promote and dismiss employees solely on merit.
Sections 49-3-201 (1) and 49-2-303 (1)(a), MCA. A narrow inter-
pretation of the term "marital status" is unreasonable, and
could lead to an absurd result. In this case, if plaintiff and
his wife were simply to dissolve their marriage, both could
keep their jobs. But for the fact this plaintiff is married,
he would still be working. The term "marital status" as a
protected classification in the statutes was included to cover
this type of unjustified discrimination.
 By construing these statutes to find that there is no
"reasonable grounds" exception to discriminatory employment
practices, and by determining that "marital status" includes
the identity and occupation of one spouse as well as whether
one is married, single, widowed or divorced, we conclude
that plaintiff is entitled to judgment on his complaint as a
matter of law. There is no need therefore, for us to reach
the question, advanced in part by amici curiae, whether a
further hearing is necessary to determine the "business
necessity" or "reasonable grounds" basis for the policy
adopted by the school board. See, Kraft, Inc. v. State iMinn.
1979), 284 N.W.2d 386; Wash. Water Power v. Wash. State
Human Rights (1978), 91 Wash.2d 62, 586 P.2d 1149; Griggs v.
Duke Power Co. (1971), 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d
158. Justification clauses in employment antidiscrimination
statutes give rise to cases of disparate impact such as Wash.
Water Power, supra, and to disparate treatment cases. See,
Yvonne Martinez v. Yellowstone County Welfare Department
(Decided March 27, 1981, 38 St.Rep. 474). The inclusion of
justification clauses in this kind of legislation is a matter
of legislative action and is not within the function of this
Court.
The summary judgment in favor of the school board is
vacated, and this cause is remanded to the District Court for
further proceedings in accordance with this opinion.
We Concur:

...............................
Justices
Mr. J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n .

The ~ i s t r i c C o u r t c o n s t r u e d " m a r i t a l s t a t u s " n a r r o w l y
t

b e c a u s e t h e c o u r t found t h a t t h e r e was no " b u s i n e s s neces-

s i t y " e x c e p t i o n under Montana law. The D i s t r i c t C o u r t f e l t

t h a t , i n c e r t a i n c a s e s , b u s i n e s s n e c e s s i t y would j u s t i f y a

d i s c r i m i n a t i o n based upon t h e o c c u p a t i o n of s p o u s e s . There-

f o r e , t h e c o u r t r e a s o n e d t h a t t h e l e g i s l a t u r e must n o t have

c o n t e m p l a t e d a broad meaning of m a r i t a l s t a t u s which would

include looking t o t h e spouse's occupation.

I agree, b u t f o r reasons s t a t e d herein, f e e l t h a t d i s -

c r i m i n a t i o n based upon t h e o c c u p a t i o n of a spouse v i o l a t e s

t h e l e g a l p r i n c i p l e opposing d i s c r i m i n a t i o n which h a s a

" d i s p a r a t e impact". However, i n " d i s p a r a t e impact" c a s e s a

d i s c r i m i n a t o r y p r a c t i c e c a n be s a n c t i o n e d where t h e r e i s a

business necessity.

The m a j o r i t y ' s o p i n i o n f o r e c l o s e s a n employer from

p a s s i n g a r u l e which would p r o h i b i t one s p o u s e from a u d i t i n g

o r s u p e r v i s i n g t h e work of t h e o t h e r spouse. The l e g i s l a t u r e

c o u l d n o t have i n t e n d e d such a r e s u l t .

S e c t i o n 49-2-303(1) ( a ) , MCA, s t a t e s t h a t i t i s a n un-

l a w f u l d i s c r i m i n a t o r y p r a c t i c e f o r a n employer t o r e f u s e em-

ployment t o a p e r s o n b e c a u s e of h i s m a r i t a l s t a t u s . If the

a c t i o n of t h e s c h o o l board had a n " a d v e r s e impact" on m a r r i e d

people, t h e n t h e a c t i o n would be p r o s c r i b e d u n l e s s t h e r e was

an overriding "business necessity". This r e s u l t a t t a c h e s i f

t h e t e r m " m a r i t a l s t a t u s " o n l y r e f e r s t o t h e s t a t e of b e i n g

"married", " s i n g l e " o r "divorced".

The United S t a t e s Supreme C o u r t d e a l t w i t h " d i s p a r a t e

i m p a c t " i n G r i g g s v . Duke Power Co. ( 1 9 7 1 ) , 4 0 1 U.S. 424, 91

S.Ct. 849, 28 L.Ed.2d 158. I n t h a t c a s e t h e d e f e n d a n t was
a n employer which r e q u i r e d e i t h e r a h i g h s c h o o l e d u c a t i o n o r

t h e p a s s i n g of a s t a n d a r d i z e d g e n e r a l i n t e l l i g e n c e t e s t a s a

c o n d i t i o n of employment. This p r a c t i c e rendered blacks

i n e l i g i b l e i n markedly d i s p r o p o r t i o n a t e numbers. The f o l l o w -

i n g e x c e r p t i s t a k e n from t h e c o u r t ' s o p i n i o n :

". . . The Act p r o s c r i b e s n o t o n l y o v e r t d i s c r i m -
i n a t i o n b u t a l s o p r a c t i c e s t h a t a r e f a i r i n form,
but discriminatory i n operation. The t o u c h s t o n e
i s business necessity. I f an employment p r a c t i c e
which o p e r a t e s t o e x c l u d e Negroes c a n n o t be shown
t o be r e l a t e d t o job performance, t h e p r a c t i c e i s
prohibited." - g g s , 401 U.S. a t 431.
G r-
i

The " a d v e r s e impact" t h e o r y of d i s c r i m i n a t i o n h a s been

extended t o sex d i s c r i m i n a t i o n cases. See Dothard v .

Rawlinson ( 1 9 7 7 ) , 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d

A "no spouse" r u l e i n e v i t a b l y h a s a n a d v e r s e i m p a c t on

married people. The o n l y remaining q u e s t i o n i s whether

t h e r e i s a " b u s i n e s s n e c e s s i t y " f o r t h e "no spouse" r u l e .

T h e r e f o r e , t h i s c a s e s h o u l d be remanded t o t h e D i s t r i c t

C o u r t w i t h i n s t r u c t i o n s t o c o n s i d e r t h e i s s u e of whether

t h e r e a r e r e a s o n a b l e grounds f o r j u s t i f y i n g t h e "no spouse"

p o l i c y a d o p t e d by t h e s c h o o l board. The d e f e n d a n t s h o u l d be

r e q u i r e d t o prove t h e b u s i n e s s n e c e s s i t y f o r t h e p o l i c y , and

t h e p l a i n t i f f s s h o u l d be g i v e n t h e o p p o r t u n i t y t o show t h a t

t h e s a m e e n d s c o u l d be a c h i e v e d w i t h a l e s s e r d i s c r i m i n a t o r y

impact .
I t should a l s o be p o i n t e d o u t t h a t Yvonne M a r t i n e z v .

Yellowstone County W e l f a r e Department ( ~ e c i d e d
March 27,

1981, 38 St.Rep. 4 7 4 ) , a r o s e under s e c t i o n 49-2-303 (1)( a ) ,

MCA, and d o e s n o t i n v o l v e a " j u s t i f i c a t i o n c l a u s e " i n a n

anti-discrimina t i o n s t a t u t e . The M a r t i n e z c a s e a r o s e under

t h e same s t a t u t e r e l i e d upon by t h e m a j o r i t y i n d e c i d i n g

t h i s case. The m a j o r i t y ' s r e f e r e n c e t o M a r t i n e z i s i n a c -

curate .
I .
- _
. .
. C

Wash. Water Power v. Wash. S t a t e Human R i g h t s ( 1 9 7 8 ) ,

9 1 Wash.2d 62, 586 P.2d 1149, i s n o t a " d i s p a r a t e i m p a c t "

case. The Wash. Water Power c a s e a r o s e u n d e r a n a n t i -

d i s c r i m i n a t i o n s t a t u t e which p r o h i b i t e d d i s c r i m i n a t i o n b a s e d

upon " m a r i t a l s t a t u s " u n l e s s t h e r e was j u s t i f i c a t i o n f o r

such d i s c r i m i n a t i o n . The Washington c o u r t b r o a d l y c o n s t r u e d

t h e t e r m " m a r i t a l s t a t u s " t o include t h e occupation of a

spouse, b u t t h e s t a t u t e s p e c i f i c a l l y provided f o r a b u s i n e s s

necessity justification. The c o n c e p t o f " d i s p a r a t e i m p a c t "

i s n o t d i s c u s s e d c o n t r a r y t o t h e s t a t e m e n t made i n t h e

majority opinion.

F o r t h e r e a s o n s h e r e i n s t a t e d I d i s s e n t from t h e m a j o r i t y

o p i n i o n and would remand t h e c a s e t o t h e D i s t r i c t C o u r t f o r

a h e a r i n g on w h e t h e r a " b u s i n e s s n e c e s s i t y " j u s t i f i e s t h e

school board's action.