A Close Shave (or not) for the “Ministerial Exception”

Darrell VanDeusen
Darrell VanDeusen

Over the past 10 years, the Supreme Court has repeatedly taken a deep dive into the Venn diagram overlap of balancing anti-discrimination laws against “freedom of religion” under that pesky First Amendment’s “church and state” thing. Relevant to our topic today, the Court addressed the scope of the “ministerial exception” in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) and reaffirmed it in Our Lady of Guadalupe School v. Morrissey-Berru, ___ U.S. ___, 140 S. Ct. 2049 (2020).

The question, put roughly, is “when is an employee of a faith based organization doing the job of a minister (using the term ‘minister’ generically to define spiritual leaders of all faiths)?”  In Our Lady of Guadalupe, the Court said that the Hosanna-Tabor factors are not “inflexible requirements” and “may have far less significance in some cases” than in others.  What matters, said the Court, is what the employee does.   In Markowski v. BYU, 2022 U.S. Dist. LEXIS 25031 (D. Utah Feb. 10, 2022), the court dismissed a former employee’s sex discrimination and retaliation claims as barred by the ministerial exception.

Ashtin Markowski worked for Brigham Young University (BYU), training Mormon missionaries for their missions through the BYU Missionary Training Center (MTC) in Provo, Utah.  It is well known that missions are one of the hallmarks of the Mormon faith journey.  See, e.g., “The Book of Mormon” on Broadway.  There are other ways to learn about this path too, of course. And Markowski’s training was one of them.

MTC trainers must comply with the Church’s Missionary Dress and Grooming Standards.  But Markowski cut her hair short.  According to the court decision, six weeks later, her supervisors told her the haircut was extreme and distracting; that it was “not feminine enough” and that it “was too masculine.”  They also complained that her eyebrows were “too firm.”  Really.  Markowski said that she didn’t want to jeopardize her job and agreed to grow her hair out.  She was fired the next day.

Markowski saw a sex-based double standard. Male employees, she noted, are allowed to bleach their hair.  She claimed that, in addition to the sex discrimination, she was retaliated against by BYU for raising discrimination concerns.  After getting a right to sue notice from the EEOC, she sued.

Granting BYU’s motion for summary judgment, Judge Parrish found that the work Markowski did at the MTC brought her within the scope of the ministerial exception.  Markowski’s duties in preparing future and current Mormon missionaries is a basic tenet of the Church’s work.  The evidence showed that she instructed prospective members on Mormon teachings, including by acting as moderator of the Church’s Come Unto Christ Facebook page. In her moderator role, Markowski prayed with potential members, explained church doctrine, and shared her personal faith. 

As such, Markowski “played a vital role in advancing” BYU’s religious mission; exactly what the Supreme Court’s definition of the ministerial exception protects.   There was no comment on whether God agreed with the decision to fire Markowski or with the court’s decision upholding her termination.

What’s the takeaway here?  It is important to realize that the ministerial exception is a narrow “free pass” under anti-discrimination laws.  This is true even when the employer is a faith-based institution.  

I also note that this blog follows my colleague Vince Jackson’s blog last week on “story of the topless selfie-pic and the fired school teacher” who recently got a thumbs up to go to trial on her sex discrimination claim (see Miranda v. South Co. Cent. Sch. Dist., No. 20-cv-104-BMC (E.D.N.Y. 2022).  In  both cases, the employer’s explanation for firing the female employee involved the supposed “distraction” caused by her failure to conform with the employer’s expected gender norms. 

It bears repeating:  employers are well served to focus on an employee’s ability to do the job for which they were hired.  Even when the employer “wins” – as BYU did here – it does so at great expense (yes, I mean legal fees), and possibly (as suggested in both Markowski and Miranda) with the loss of a good employee as a result. 







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