Spouses Need Not Apply: The Legality of Anti-Nepotism and No-Spouse Rules

The article discusses the practical and legal implications of using anti-nepotism and no-spouse rules in workplaces across the United States. Anti-nepotism and no-spouse rules have remained popular while the labor force participation rates of women and the presence of dual earner couples have increased. Not surprisingly, employees, primarily women, affected by the application of these rules have raised challenges under various legal theories. Their primary argument has been that while neutral on their face, anti-nepotism and no-spouse rules significantly burden women to a larger extent than men. Courts, however, have been ambivalent about the treatment afforded to challenges to the application of these rules. In general, courts continue to treat these rules as sex-neutral, and deny employees affected by them any form of relief. This article argues that the view that anti-nepotism and no-spouse rules are sex-neutral ignores the real life employment experiences of married women. These rules are antiquated policies, based on a traditional, conservative view of appropriate gender roles. Courts, should recognize these realities and provide women appropriate relief. The article evaluates the various legal frameworks used to challenge the use of these rules in the context of our current knowledge about the economics regarding job choices of families where both spouses work.