Robert P. Tinnin, Jr. and Glenn A. Beard, Editors
Tinnin Law Firm, A Professional Corporation

Vol. 14, No. 7
July 2008

RELIGIOUS DISCRIMINATION

Son's secret tapes of father/boss support religious discrimination claim

In a recent decision, the Tenth Circuit ruled that a son's secret recordings of conversations with his father should be admitted as evidence that the family business illegally refused to rehire the son because he had left the church attended by coworkers and other members of his family.

Facts

Shem Fischer worked for Forestwood Co., a manufacturer of wooden cabinets in Hildale, Utah. His employment began as a shop worker in 1987. By the time he left in July 2000, he was the company's top salesman. Erwin Fischer, Shem's father, was president of Forestwood, and Marvin, Shem's half brother, managed the business. Another half brother, David, also worked for the company.

Erwin, Marvin, and Forestwood's other managers were members of the Hildale-based Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). Beginning in 1999 or earlier, the company refused to interview or hire anyone who was not an FLDS member.

Fundamentalist family feud

Shem worked closely with John Musser throughout the 1990s. Both were initially FLDS members, but in 1999, Musser left the FLDS and joined the Church of Jesus Christ of Latter-day Saints. Around the same time, Shem started publicly criticizing the FLDS and skipping church functions. As a result, he claimed his coworkers "heckled" him and left anonymous notes on his car and in his message box at work. The FLDS formally expelled him in spring 2000.

That summer, the son of FLDS' "prophet and leader" gave a sermon urging church members to stop supporting "apostates" (those who had deserted their religion) through their business relationships. Shem later attended a meeting with his half brothers at which Marvin said he planned to terminate Musser. Shem objected that firing Musser would be religious discrimination and said it would be "over the top of me." Marvin replied, "If that's the way it's got to be," leading Shem to believe that he was being fired.

Despite Marvin's request that he reconsider, Shem left Forestwood approximately eight weeks later, after being given time to finish some projects.

Dad's ultimatum caught on tape

In November 2000, Shem approached his father, Erwin, seeking reinstatement with the company. He surreptitiously taped two of the conversations with his father on the subject. In the first, he pushed hard for reinstatement, but his father held back, claiming someone else had already taken over Shem's duties. In the second conversation, however, Erwin indicated that he wanted Shem back at the company ― but only if he rejoined the church.

Shem filed a charge with the Equal Employment Opportunity Commission against Forestwood and then sued the company in Utah federal district court, claiming religious discrimination and retaliation under Title VII. The district court excluded his tapes from evidence and dismissed his claims without a trial. Shem then appealed to the Tenth Circuit.

Tenth Circuit's decision

Failure-to-hire claim. On appeal, the Tenth Circuit ruled that the district court should not have excluded the taped conversations between Shem and his father. The district court reasoned that Erwin was speaking in his capacity as a father, not as the president of Forestwood. The appellate court rejected that conclusion because Erwin was president of the company at the time of the conversations and was authorized to make statements about hiring and firing. Additionally, he was acting as an agent of the company and speaking within the scope of his authority in discussing with Shem whether he would be rehired.

The court also observed that otherwise admissible evidence is not made inadmissible because of a family relationship, and "Title VII contains no exception for family- owned businesses or intra-family disputes." It decided that the recordings, which should have been admitted, were direct evidence that Shem's nonmembership in the FLDS was a motivating factor in Forestwood's decision not to rehire him.

In the context of discussing Shem's potential reinstatement, Erwin made a number of statements, including:

• "[W]as it just for a job or would you like to come back and be part of the people in the group[?]";
• "We would like to have everyone supporting the force, you know, be one with the prophet"; and
• "[Y]ou haven't lost your career. You can get yourself back into the priesthood."

Copyright 2008 M. Lee Smith Publishers LLC

NEW MEXICO EMPLOYMENT LAW LETTER is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.