By Jack Tuckner, Esq.
(Originally published on Sas for Women )
If you are going through a divorce, you’re almost certainly experiencing strong emotions that might be overwhelming at times. So while your personal life is absolutely none of your employer’s business, if your boss or coworkers will notice that you’re a bit out of sorts, anxious, distracted, sad, or depressed, it may be best to share the news of your divorce at work. It’s certainly personal—and it’s not about oversharing with TMI—yet there’s a professional way to approach the situation that may be in your best career interests.
Why It’s Important to Let Your Boss Know
The main reason to notify your employer about your divorce is to let them know how it might affect you personally and thus affect your work. Given the emotional roller coaster ride that is the typical divorce process, you may need some flexibility and understanding from your employer due to your need to occasionally take divorce-related calls, meet with your lawyer during the day, and attend mediation sessions. These items alone may require you to (infrequently) miss work, arrive late, or leave work early.
Another reason that you may choose to notify your company about your divorce is that your state may abide by certain laws. (All US states have their own individual divorce laws, so it’s important to learn the laws in your state when you ask questions of a divorce attorney.)
Under the New York City and the New York State “Human Right Laws” that govern workplace rights, an employer may not discriminate against an employee based on whether they are married, single, divorced, or in any other particular type of personal “familial” relationship, so if you suffer a negative change in your employment status on the heels of notifying your company about your divorce, that change may be considered illegal and discriminatory.
So notifying your employer about your divorce has a secondary protective effect on job status.
The Fine Print
Keep in mind that divorce itself is not a “protected activity” under any employment law, but “marital status” IS protected, at least in New York and a handful of other states, and if you’re experiencing separation and/or divorce-based severe emotional distress, you have the right to seek flexibility from your employer, legally known as a “reasonable accommodation” of your job responsibilities due to the temporary emotional, mental, and life situational disability or “impairment” that you’re enduring because of this major life-change.
Sharing Your Divorce at Work: A Realistic Approach
While you should never use your divorce as a reason to excuse poor performance (mostly because as mentioned above, marital divorce is not a “protected status” under any federal or state employment law, such as, for example, pregnancy or disability), if you’re experiencing major depression, anxiety, or other emotional and/or physical symptoms due to the highly stressful divorce situation, then you are likely entitled to flexibility through a temporary reasonable accommodation of your job responsibilities as a direct result of your temporary emotional and/or physical symptoms related to this major life change.
So without getting into the gory details of your marital discord with your spouse, you may want to keep your employer in the loop if only so that they can exhibit flexibility and compassion (the ordinary lay words for “reasonable accommodation” under the law), and thus support you while you continue to perform the essential functions of your job through the most difficult period of your separation and divorce.
Do you think that you may need more time to complete certain work tasks? Or perhaps you just need a little understanding during this difficult time?
Try to be as honest as possible, so that your employer knows what to expect from you during this process. Again, this does not mean you need to get confessional, or divulge otherwise irrelevant and intimate details about your split—you do not—but you want to avoid the situation where your boss feels that you’re not quite your usual upbeat, energetic self, but they don’t know why.
Managing Stress While Maintaining Your Duties
Perhaps they start treating you as if your performance is lagging for no good reason, and the next thing you know you’re being written up, or poorly evaluated, or worst case, terminated for being gloomy, low energy, and not giving 100% to the job.
It goes without saying that getting fired while you’re going through a separation or divorce is just another serious major life blow that you should avoid at almost any cost during a divorce. This is another reason why a little information and notification can go a long way to getting your boss and coworkers aligned on your side and optimally supportive of you.
If you are looking for a road map to help you through divorce, you’ll want to read “The 55 Must-Do’s on Your Modern Divorce Checklist.”
While your divorce is clearly a tough time in your life (even if you’re the one who initiated it and for good reason) it will still undoubtedly take a toll on you. The world keeps spinning on its axis, and you still have a job that needs to get done.
Your employer is counting on you, so please do not take advantage of their understanding by using your divorce as an excuse for why you are failing to adequately perform at work.
Additionally, divorce tends to involve much paperwork, and you may need to visit your company’s human resources or benefits department (or the next best thing at your workplace) to update certain documents. This may include your health insurance and tax information to reflect your new status as a single person, which is another reason to notify your boss of this major life change.
Give Yourself a Break
You may also want to take a few days off when you’re first confronted with the reality of your divorce, whether it was you (consider reading “I Wanted the Divorce, Why Am I So Sad?) or your spouse who instigated the separation. The emotional trauma can be difficult to handle, at least initially, so perhaps use some of your accrued vacation days to refocus, ground yourself, and self-care. Divorce is a grieving process, and if you don’t have any vacation days to use, then perhaps you can take a few days off as sick days, or take a brief, short-term disability leave.
That temporary leave may be protected under disability discrimination laws, as companies are always reluctant to punish or fire employees who are on protected short-term disability leaves. Termination based on that alone may be illegal disability discrimination. If you’re choosing that route, please consult with your primary care physician or a mental health practitioner so that your emotional distress (and request for leave) will be medically confirmed by one of your treating health professionals.
In my experience, clients going through a divorce must come to terms with all the divorce happenings, as it often initially feels like a runaway train with no engineer at the switch, so you need support to navigate through the initial days and weeks and reflect on the never-ending questions you’ll be pondering, without the daily and hourly interference from work calls or emails. (Outside of work, consider finding support in the form of therapy, coaching, or divorce support groups.)
Making Your Job Happen During Divorce
If you can’t take time off from work, either because of your choice or because your job is not permitting it, consider asking to work remotely as a temporary reasonable accommodation of your divorce-based stressors. That work-approved flexibility may be just the ticket to help you balance yourself.
Once the initial divorce dust has settled, then you can return to the office and try your best to focus on your work, or at least distract yourself from the divorce through your work. As one client shared during this period in relation to her work and the divorce: “My Ex can take away our relationship, he can take all of our shared possessions, even when it’s totally unfair, but the one thing he can’t take from me is my career.”
And this is why it’s so vitally important to protect your job during a difficult divorce. Your career may be the only thing left that you feel you still have full control over during a time of massive upheaval in your personal life. (Check out this related piece, if you are thinking about quitting your job, and why you want to be careful about that, too.)
Keep It Simple
To recap, notifying your employer of the divorce doesn’t mean that you should make a federal case out of it, so to speak. It may be best to schedule a quick meeting just to notify your boss that you’re going through a divorce and that you may need some time off for meetings, telephone calls, or court dates. Then proactively suggest how you will make up any work you may miss on those days, as while you want your employer’s cooperation and understanding, remember that your company isn’t a social services agency (at least not for you, its employee). But do keep in mind that you can and should ask your company if they know of any resources you might be able to utilize, such as its Employee Assistance Program, that may offer free confidential counseling or legal support to their employees going through just such acute, temporary crises.
If you work in New York, where our employee rights firm is based, given NY’s liberal interpretation of what constitutes “disability” under the law, then your divorce-based emotional distress is a protected “impairment” entitled to flexibility and reasonable accommodation, so take advantage of that fact if you require time to decompress and cope with such high-level stress. The additional protection that will be accorded to you if you go down that road is that your employer is not permitted to retaliate against you and subject you to backlash as a result of your protected request for some reasonable time off, or your request to work remotely, etc., due to the divorce-related mental, emotional or physical fallout from your divorce process.
Understanding Anti-Discrimination Laws at Work
Finally, in roughly half the states in the United States, “marital” or “familial” status is protected under those state’s anti-discrimination laws, so if you suffer an adverse employment action such as a demotion, failure to promote, or termination on the heels of your notification of divorce, you may have a claim for discrimination on that basis alone. It goes without saying (but I’ll say it again anyway for emphasis), it’s far better to protect your job and career while you’re going through a divorce, than it will be to lose your job while you’re going through a divorce, even if you do have a viable discrimination case to pursue thereafter.
But it’s good to know that you do have some legal protections from workplace hostility and discriminatory treatment during a painful marital divorce if your employer treats you differently because of the divorce, or because of your emotional disability resulting from the divorce, but remember this one important fact:
You can be fired while you’re going through a painful divorce, and you can be fired while suffering from major depression during a divorce. You just cannot be fired because of your marital status change (at least not in the states where marital status is protected) and you cannot be legally fired because you are temporarily distraught and impaired by divorce-based depression, anxiety, etc., especially if your depression and anxiety are medically documented.
If you feel you’ve been treated unfairly in your place of employment because of your divorce or other workplace discriminatory practices, I invite you to schedule a free consultation to learn your rights and what can be done about your situation. Contact my firm Tuckner, Sipser, Weinstock & Sipser, LLP, or call 212.766.9100 and schedule a meeting. We’ve been advancing women’s rights since 1999.