Mormon Missionary Training, Insufficiently Feminine Haircuts, and the First Amendment

From Markowski v. BYU, decided yesterday by Judge Jill Parrish (D. Utah):

The Church of Jesus Christ of Latter-day Saints ("the Church") is a religious organization with its headquarters in Utah. One of the Church's "most recognized characteristics" is its missionary program. Church members, typically under the age of twenty-five, can serve a mission for eighteen to twenty-four months, during which they share the teachings of Jesus Christ and the Church. Prior to beginning their mission, future missionaries spend a short period of time at a Missionary Training Center to learn how to effectively teach Church doctrine.

BYU is a university "founded, supported, and guided by The Church of Jesus Christ of Latter-day Saints." BYU's mission includes "making its resources available to the Church when called upon to do so." As part of this mission, BYU operates a Missionary Training Center ("MTC") in Provo, Utah. The MTC employs many BYU students who assist in preparing missionaries for their missions.

On November 6, 2017, BYU hired Plaintiff Ashtin Markowski ("Markowski") as a trainer at the MTC's Online Teaching Center. Markowski trained full-time missionaries in how to respond to online inquiries about the Church and how to use their social media to have discussions with people interested in learning more about the Church. Markowski also piloted new online engagement projects.

All MTC employees, including Markowski, must comply with the Church's Missionary Dress and Grooming Standards. On April 3, 2020, Markowski cut her hair short. Six weeks later, Markowski's supervisors informed her that they considered her haircut to be extreme and distracting. Her supervisors informed her that her haircut was "not feminine enough" and "was too masculine." They also complained that her eyebrows were "too firm." Markowski indicated that she did not want her haircut to jeopardize her ability to work at the MTC and agreed to grow her hair out. The next day, Markowski's supervisors fired her….

First, Markowski accuses BYU of sex discrimination in violation of Title VII. Second, Markowski also claims that BYU retaliated against her for complaining to supervisors that BYU applied a double standard in deeming her hairstyle "extreme" while allowing male employees to wear bleached hair….

Title VII bars discrimination on the basis of sex. Discrimination on the basis of sex includes "failing to fulfill traditional sex stereotypes." The parties do not openly dispute that BYU discharged Markowski for failing to fulfill traditional sex stereotypes.

Rather, resolution of this motion depends on whether the ministerial exception applies to bar application of Title VII to Markowski's termination. The Supreme Court first recognized a "ministerial exception" barring certain federal employment discrimination claims against religious institutions in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. (2012). Specifically, the Supreme Court held that anti-discrimination employment law does not govern religious institutions' employment decisions regarding ministers. { Markowski concedes, and the court agrees, that BYU qualifies as a religious institution that may avail itself of the ministerial exception.} …

Based upon the undisputed facts, the court concludes that Markowski plainly performed vital religious duties.

First, her actions at work involved advancing the Church's mission by training missionaries. Specifically, both parties agree that Markowski "train[ed] full-time missionaries on how to properly use social media so as to convey the Church's message." Church leaders highlight God's commandment to "take this gospel to all the world" as one of the central tenets of their faith. As such, preparing missionaries to convey the Church's message via social media is essential to carrying out the Church's mission in the modern world. Indeed, in much the same way that the plaintiff-teachers in Morrissey-Berru "prepared the children for their participation in other religious activities," Markowski prepared current and future missionaries for participation in their Church missions—a religious activity that is central to the Church's mission.

Second, the undisputed evidence demonstrates that Markowski directly instructed prospective members on the Church's teachings while on the job. And just as "educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school," educating prospective members and imparting the Church's teachings to potential members are responsibilities that lie at the very core of the mission of the Church and its MTC. Indeed, according to Church founder Joseph Smith, "[a]fter all that has been said, the greatest and most important duty is to preach the Gospel." Markowski does not dispute that "[a]s part of her employment, [she] also acted as a moderator on the Church's Come Unto Christ Facebook page, and she had administrator access to communicate on behalf of the Church with other Facebook users on this page using the Facebook messenger feature." BYU provides evidence—and Markowski does not dispute the evidence—that while acting as a moderator as part of her employment, Markowski prayed with potential members, explained essential religious doctrine such as the path to salvation to potential members, and shared her personal faith with potential members. Indeed, one of the moderator group goals that BYU hired Markowski to advance was to "help each [Facebook group] member have a minister who can watch over them."

BYU also submits further evidence, which Markowski disputes, that Markowski engaged in teaching religious doctrine as part of her job. Specifically, BYU submits several pages of social media chats that show Markowski using the Church's chat system to teach potential members about Church doctrine…. ("We believe that, thanks to Jesus Christ, we are all saved! He has paid the price for all of us. However, we still need to keep the commandments and repent so we can continue to progress and become better people.") … ("Sometimes answers to prayers take a while. They may not be instant like you want it to be, but Heavenly Father really does hear and answers you."). Markowski does not contend that someone else wrote the chats or otherwise question the veracity of the chats submitted by BYU. Instead, she argues that the record does not establish whether she taught prospective members as part of her employment or on her own time. But Markowski has submitted no evidence in support of her contention that she did not engage in religious teaching on the job.

Even considering the evidence in the light most favorable to Markowski, there is no genuine issue of fact as to whether Markowski taught religious doctrine as part of her job. She undoubtedly did. Markowski herself stated under penalty of perjury (in another lawsuit) that she "had an on-campus job at the Missionary Training Center where I … taught people about our church online." Such an unequivocal declaration—absent any evidence to the contrary—speaks for itself….

The court need not engage in any further analysis. Because the Supreme Court has instructed that "[w]hat matters, at bottom, is what an employee does"—and Markowski's actions alone make clear that she played a vital role in advancing the religious mission of BYU—her claim fails under the ministerial exception.

But were the court to look beyond Markowski's actions to the non-exhaustive factors listed in Hosanna-Tabor, it would reach the same conclusion. The job duties for Markowski's position were explicitly religious in nature and reflected a role in conveying the Church's message and carrying out its mission. The duties include "invit[ing] all to come unto Christ and help[ing] missionaries to effectively do the same" as well as "help[ing] interested individuals [come] closer to Christ and [helping] missionaries understand and apply their purpose." Moreover, Markowski's position required significant religious training. Employment at the MTC required service of an eighteen-month mission, including the related religious training encompassed in every mission, prior to hire. And Markowski's job required her to spend thirty minutes before each of her shifts preparing for work, including by studying the Book of Mormon. Finally, Markowski has expressly held out that part of her job included teaching people about the Church's doctrine…. ("I had an on-campus job at the Missionary Training Center where I … taught people about our church online."). Accordingly, the Hosanna-Tabor factors further support application of the ministerial exception.

In conclusion, as the Supreme Court has noted that "the First Amendment … gives special solicitude to the rights of religious organizations." Here, that special solicitude prevents Markowski from pursing her claims of sex discrimination and retaliation….