DENVER (CN) – The 10th Circuit allowed a former member of the Fundamentalist Church of Jesus Christ of Latter-day Saints to proceed with an employment discrimination claim that his father’s cabinetry company refused to hire him back unless he rejoined the polygamist Mormon sect.
Forestwood Co. is owned by plaintiff Shem Fischer’s father, Erwin, and managed by his half-brother, Marvin. The company has not hired or interviewed anyone outside the FLDS church since 1999, and 69 out of 70 employees were church members when Fischer filed his complaint with the Equal Employment Opportunity Commission.
Fischer created friction with his co-workers by protesting the firing of John Musser, a fellow employee who left the FLDS church and moved out of the tight-knit FLDS community of Hildale, Utah.
After Musser left, Fischer publicly criticized the church and skipped church functions. His co-workers allegedly heckled him and left notes expressing concern about his faith on his the windshield of his car. In spring 2000, he was formally expelled from the FLDS church. Fischer said he was effectively fired for supporting Musser.
In November 2000, he asked his father to rehire him. He secretly recorded two conversations with his father, during which Erwin stated, “We would like to have everyone supporting the force, you know, be one with the prophet” and said the job was only available if Fischer could “get (himself) back into the priesthood.”
The district court barred the tapes as inadmissible hearsay, but the appellate judges reasoned that conversations with the company’s president were not hearsay.
With the tapes admitted into evidence, the court said Fischer had a stronger case that religion factored into Forestwood’s refusal to rehire him.
The court threw out his claims for wrongful termination and retaliation, however, because Fischer failed to show evidence of actual or constructive discharge.