No. 80-344 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

JAMES THOMPSON and WILLIAM BOISVERT, 

Plaintiffs and Appellants, 

BOARD OF TRUSTEES, SCHOOL DISTRICT NO. 12, 

HARLEM, BLAINE COUNTY, MONTANA, 

Defendant and Respondent. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County of Blaine 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants: 

Weber, Bosch, Kuhr, Duqdale, Warner & Martin, Havre, 

Montana 

John Warner argued and Mary VanBuskirk, Havre, Montana 

For Respondent: 

Donald Ranstrom, County Attorney, argued, Chinook, Montana 

For Amicus Curiae: 

Frederick F. Sherwood, Human Rights Division, Helena, 

Mont na e,,,d?, 4.r. ;, yq 4 /: 

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Submitted: March 25, 1981 

Decided: MaY 6, 1981 

Filed : ~fiu '6 @I!] 

L' A 

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 employment 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~tory practices 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 - on reasonable grounds." 

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 ~istrict Court 

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 interpretation 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. Justice Frank B. Morrison, Jr., dissenting: 

I respectfully dissent from the majority opinion. 

The ~istrict Court construed "marital status" narrowly 

because the court found that there was no "business necessity" exception under Montana law. The District Court felt 

that, in certain cases, business necessity would justify a 

discrimination based upon the occupation of spouses. Therefore, the court reasoned that the legislature must not have 

contemplated a broad meaning of marital status which would 

include looking to the spouse's occupation. 

I agree, but for reasons stated herein, feel that discrimination based upon the occupation of a spouse violates 

the legal principle opposing discrimination which has a 

"disparate impact". However, in "disparate impact" cases a 

discriminatory practice can be sanctioned where there is a 

business necessity. 

The majority's opinion forecloses an employer from 

passing a rule which would prohibit one spouse from auditing 

or supervising the work of the other spouse. The legislature 

could not have intended such a result. 

Section 49-2-303(1) (a), MCA, states that it is an unlawful discriminatory practice for an employer to refuse employment to a person because of his marital status. If the 

action of the school board had an "adverse impact" on married 

people, then the action would be proscribed unless there was 

an overriding "business necessity". This result attaches if 

the term "marital status" only refers to the state of being 

"married", "single" or "divorced". 

The United States Supreme Court dealt with "disparate 

impact" in Griggs v. Duke Power Co. (1971), 401 U.S. 424, 91 

S.Ct. 849, 28 L.Ed.2d 158. In that case the defendant was 
an employer which required either a high school education or 

the passing of a standardized general intelligence test as a 

condition of employment. This practice rendered blacks 

ineligible in markedly disproportionate numbers. The following excerpt is taken from the court's opinion: 

". . . The Act proscribes not only overt discrimination but also practices that are fair in form, 

but discriminatory in operation. The touchstone 

is business necessity. If an employment practice 

which operates to exclude Negroes cannot be shown 

to be related to job performance, the practice is 

prohibited." -- Griggs, 401 U.S. at 431. 

The "adverse impact" theory of discrimination has been 

extended to sex discrimination cases. See Dothard v. 

Rawlinson (1977), 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 

A "no spouse" rule inevitably has an adverse impact on 

married people. The only remaining question is whether 

there is a "business necessity" for the "no spouse" rule. 

Therefore, this case should be remanded to the District 

Court with instructions to consider the issue of whether 

there are reasonable grounds for justifying the "no spouse" 

policy adopted by the school board. The defendant should be 

required to prove the business necessity for the policy, and 

the plaintiffs should be given the opportunity to show that 

the same ends could be achieved with a lesser discriminatory 

impact . 

It should also be pointed out that Yvonne Martinez v. 

Yellowstone County Welfare Department (~ecided March 27, 

1981, 38 St.Rep. 474), arose under section 49-2-303 (1) (a), 

MCA, and does not involve a "justification clause" in an 

anti-discrimina tion statute. The Martinez case arose under 

the same statute relied upon by the majority in deciding 

this case. The majority's reference to Martinez is inaccurate . 
-_ . I... C 

Wash. Water Power v. Wash. State Human Rights (1978), 

91 Wash.2d 62, 586 P.2d 1149, is not a "disparate impact" 

case. The Wash. Water Power case arose under an antidiscrimination statute which prohibited discrimination based 

upon "marital status" unless there was justification for 

such discrimination. The Washington court broadly construed 

the term "marital status" to include the occupation of a 

spouse, but the statute specifically provided for a business 

necessity justification. The concept of "disparate impact" 

is not discussed contrary to the statement made in the 

majority opinion. 

For the reasons herein stated I dissent from the majority 

opinion and would remand the case to the District Court for 

a hearing on whether a "business necessity" justifies the 

school board's action.