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

Start at Markowski v. BYUJudge Jill Parrish, D. Utah, pronounced the verdict yesterday:

Utah is home to the Church of Jesus Christ of Latter-day Saints (the Church). It’s a religious organisation. Its missionary program is one the most prominent characteristics of the Church. Commonly, Church members are under twenty-five years of age and can serve as missionaries for between eighteen and twenty-four month. During this time, they will share the teachings from Jesus Christ with the rest of the world. To learn the best methods of teaching Church doctrine, missionaries need to spend time at a Missionary Training Center prior to starting their mission.

BYU was founded, supported and guided by the Church of Jesus Christ of Latter-day Saints. BYU’s mission is to “make its resources available to The Church whenever called upon.” BYU’s Missionary Training Center (“MTC”) is located in Provo (Utah). Many BYU students work in the MTC to prepare missionaries for missions.

BYU appointed Plaintiff Ashtin Markowski (“Markowski”) to be a teacher at the MTC’s Online Teaching Center on November 6. Markowski instructed full-time missionaries on how to answer online queries about the Church, and how to use social media for conversations with anyone interested. Markowski was also a pilot for new online engagement programs.

Markowski is the only MTC employee who must follow Church Missionary Dress and Grooming Standards. Markowski cut Markowski’s hair in a short style on April 3, 2020. Six weeks later Markowski received a letter from her supervisors stating that she considered Markowski’s haircut too extreme and distracting. She was told by her supervisors that the haircut she had chosen wasn’t feminine enough and too masculine. She also had her eyebrows criticized for being “too stiff.” Markowski stated that her hairstyle did not affect her ability to work for the MTC. She agreed to have her hair cut. The next day, Markowski’s supervisors fired her….

BYU is accused of discriminating against women in violation 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 bans discrimination on grounds of sex. Sex discrimination includes the “failings to meet traditional sex stereotypes”. They do not contest that Markowski was fired by BYU because he failed to conform to traditional sex stereotypes.

This motion will be resolved based on the question of whether the ministerialexception applies to prohibit Title VII application to Markowski’s dismissal. In 1989, the Supreme Court recognized a ministerial exception to federal discrimination against religious institutions. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. (2012). The Supreme Court ruled that the anti-discrimination law doesn’t apply to religious institutions’ decisions about ministerial employment. { Markowski concedes, and the court agrees, that BYU qualifies as a religious institution that may avail itself of the ministerial exception.} …

The court can conclude that Markowski performed essential religious functions based on the facts.

Her actions in the workplace were focused on advancing Church mission through training missionaries. Both parties agreed that Markowski should “train”.[ed]How to effectively use social media for the Church’s missionaries. Full-time missionaries. The central principle of faith for Church leaders is God’s commandment that “take this gospel all over the world”. To fulfill the Church’s mission in modern times, it is crucial to train missionaries who can communicate the Gospel’s message through social media. In fact, it is much like the way the plaintiff-teachers did 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.

The undisputed evidence also shows that Markowski instructed potential members about the Church’s teachings during his job. Just as inculcating the faith and training young people to follow it are core missions of private religious schools, so too is the responsibility of prospective members to educate them and pass on the Church’s teachings. Joseph Smith, Church founder, said that “…”[a]After everything that’s been said, it is still the highest and most important obligation to spread the Gospel. Markowski doesn’t dispute the fact that “[a]As a part of her job, [she]Also, she was a moderator of the Church’s Come Unto Christ Facebook group. She had administrator access and could communicate for the Church with the other Facebook users via the Facebook messenger. 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. BYU actually hired Markowski as a moderator to assist in advancing the goal of “helping each individual.” [Facebook group]Every member should have a minister to watch them.”

BYU submits additional evidence that Markowski denies, which shows Markowski taught religious doctrine in her work. 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 in Jesus Christ and that we all have been saved. All of us have paid the penalty. We must still keep His commandments, and we need to repent to continue our progress as better human beings. … (“Sometimes answers to prayers take a while. Although they may not come immediately as you would like, Heavenly Father does listen .”).. Markowski is not arguing that the chats were created by another person or questioning the validity of BYU’s submissions. She argues instead that there is no evidence to show whether the prospective members were taught by Markowski as part of her job or independently. Markowski, however, has not provided any evidence to support her claim that she didn’t engage in religious instruction on the job.

Even though Markowski has the strongest evidence to support her claim, the fact that Markowski did not teach religious doctrine is undisputed. Undoubtedly she 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….

This court does not need to do any additional analysis. As the Supreme Court instructed, “[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.

The court did not look at Markowski’s actions but the non-exhaustive aspects listed in Hosanna-TaborThe same result would be reached. Markowski’s job duties were clearly religious and included a part in communicating the message of the Church and fulfilling its mission. These duties are “invitation.”[ing]To come to Christ Jesus and be saved[ing]Missionaries should be able to do the same as missionaries” and “help others.”[ing]Individuals who are interested [come]Christ is closer than you think [helping]”Missionaries should understand their role and be able to apply it.” Markowski required extensive religious training. The MTC job required that Markowski serve an 18-month mission. This included the religious training necessary for every mission. Markowski had to prepare for each shift by spending thirty minutes studying the Book of Mormon before she could start her shift. 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.”). The following is the conclusion: Hosanna-TaborFactors further support the application of this ministerial exemption.

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….