Against immutability.

• Author: Clarke, Jessica A.
• Position: Of characteristics in employment discrimination law

ARTICLE CONTENTS INTRODUCTION I. THE REVISED THEORY OF IMMUTABILITY A. Two Concepts of Immutability 1. Protection from Chance 2. Protection for Choice B. The Synthesis C. Potential for Migration II. OBJECTIONS TO THE REVISED IMMUTABILITY A. Masking Moralizing Judgments B. Excluding Inessential and Stigmatized Traits C. Reinforcing Stereotypes D. Creating Line-Drawing Problems E. Limiting Rights to Privacy and Recognition F. Inviting Conflict III. APPLYING THE REVISED IMMUTABILITY TO NEW CONTEXTS A. Weight B. Pregnancy C. Criminal Records IV. BEYOND IMMUTABILITY A. Universalizing a Reasonable Relationship Requirement? B. Targeting Systemic Biases CONCLUSION INTRODUCTION

Why is it illegal to discriminate on the basis of certain traits, like race or sex, but not others, like experience or beauty? One answer that has been offered in the context of the constitutional guarantee of equal protection is that certain human traits are immutable, meaning they were not chosen. This concept has long endured the scholarly criticism that it is "both over- and underinclusive." (1) For example, it is permissible to discriminate on the basis of intelligence, which some say is innate, but not religion, which some say can be changed. In response to the argument that sexual orientation might be changed and is therefore undeserving of protection, gay rights advocates have persuaded many courts, perhaps even the Supreme Court, to adopt a different understanding of immutable characteristics. (2) Many courts now ask "not whether a characteristic is strictly unchangeable, but whether the characteristic is a core trait or condition that one cannot or should not be required to abandon." (3) Or, as another judge put it, "'immutability' may describe those traits that are so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically." (4)

The success of the revised version of immutability in the courts has given new life to a concept once thought dead and led scholars to apply the insight to other identities or traits that are not currently protected by antidiscrimination law. (5) Scholars have been optimistic about the so-called "new immutability" (6) for its potential to expand those aspects of identity covered by antidiscrimination law. (7)

This Article offers the first sustained challenge to the new immutability. (8) Despite the extensive attention the theory has received in judicial opinions and legal scholarship, (9) no work has critically considered its broader implications for the development of antidiscrimination law. The evolution of immutability has important implications for antidiscrimination doctrine, as well as debates among the public, legislatures, and employers over whether to prohibit discrimination on the basis of various traits and identities. To assess the theory's potential and limits, this Article examines how arguments based in the revised version of immutability might play out with respect to characteristics on the borders of employment discrimination law's protection. It concludes that, while the new immutability has had success in constitutional litigation for LGBT rights, it is a questionable strategy for reconceptualizing the broader project of equality law. As a normative matter, the new immutability obscures critical questions about why some characteristics ought to be treated equally, offering only the empty assertion that they are fundamental to personhood. Rather than replacing the old theory of immutability, which entails problematic moral judgments about individual responsibility, the new version reinvigorates the ideology behind the old. As a strategic matter, the new immutability may backfire for groups advocating that new forms of bias be prohibited, because it creates line-drawing problems and justifies only limited forms of protection.

This Article is concerned with the migration of the new immutability from equal protection cases to new contexts, particularly the various statutes prohibiting employment discrimination. (10) While this Article suggests reasons to be skeptical of the new immutability in general, its intervention is not focused on equal protection doctrine or the same-sex marriage cases. Instead, it focuses on employment discrimination, not only because of the economic importance and profound social significance of the workplace, (11, 12) but also because employment discrimination law has shown remarkable willingness to extend legal protections to new traits.

As the role of immutability in the Supreme Court's equal protection jurisprudence has diminished, the concept has continued to have a strong influence and enduring explanatory force in employment discrimination law. (13) While immutability is but one among many factors in equal protection doctrine, (14) it often plays a determinative role in employment discrimination disputes. Courts use the old concept of immutability to limit the reach of employment discrimination statutes, narrowly construing what counts as discrimination based on characteristics such as race, sex, and disability. (15) The old immutability's pervasive influence on employment discrimination law suggests that the new version might have obvious applications there as well. (16) This Article considers how the new immutability might play out in controversies over whether the law forbids employment discrimination based on obesity, (17) pregnancy, (18) and criminal records. (19) Despite plausible statutory arguments for covering these types of discrimination, courts often refuse to extend protection. (20)

In these contexts, the old immutability's argument that these traits were chosen lies at the heart of courts' refusals to extend familiar forms of antidiscrimination protection. (21) The old immutability assumed that certain traits, like race and sex, were not blameworthy on account of being "accidents of birth." (22) The corollary is that traits for which an individual is accountable, in some sense, are appropriate bases for discrimination. (23) This reasoning may be premised on the moral intuition that discrimination against those who are blameworthy is fair. Or it may rest on the unstated assumption that the law should create incentives for good (or efficient) behavior by allowing discrimination on the basis of certain bad (or costly) choices. For instance, discrimination based on weight often goes unredressed by the law because obesity is commonly thought to be a mutable trait that may be prevented or ameliorated through adjustments to lifestyle and diet. (24) Judges may refuse to require that employers accommodate pregnancy because they believe that women who make private reproductive choices ought to bear the costs. (25) Employment discrimination on the basis of criminal records is thought to be fair as a collateral consequence of conviction. (26) The judgments underlying these views are often harsh, intrusive, and stigmatizing. Yet these moral and economic judgments lie below the surface of policy and legal doctrine and are rarely interrogated or theorized. Is obesity more morally blameworthy than heart disease, which is protected from discrimination despite having behavioral components? Should pregnant women alone bear the costs of pregnancy? Should those with criminal records be shunned from all employment opportunities? (27)

The new immutability is no better than the old on these questions. It fails to provide a theoretically satisfying basis for understanding which characteristics deserve protection and invites normatively problematic judgments that are at odds with the purposes of antidiscrimination law. While the old immutability assumed that certain traits might be blameworthy because they were chosen, the new immutability's appeal to "personal identity" masks underlying moral assessments about which traits, while entailing some degree of choice, ought not be blameworthy. (28) These estimations may be unfair and irrelevant to employment. But by softening the edges of immutability theory to render it more appealing, the new immutability shields problematic judgments from scrutiny. Moreover, the new immutability's focus on valued traits leaves out many stigmatized identities--identities that might have the strongest claims to protection precisely because judgments based on them are superficial and perpetuate systemic subordination. (29) For example, many people would dispute that weight is a central part of identity, and most people would prefer to change their weight if they could. (30) (And many would dispute that even sexuality, sex, and race are, or ought to be, central to personhood. (31)) Even worse, to argue a trait is fundamental to personality is to bolster the argument that it cannot change. (32) The suggestion that criminal records are central to personality would lend support to employer beliefs that automatic exclusion of all those with criminal records will help avoid workplace crime. (33) In this way, the new immutability reinforces stereotypes of the sort that antidiscrimination law is intended to disrupt.

Nor does the new immutability clear a path toward legal protection for new characteristics. The new immutability protects traits that are fundamental to a person's identity. (34) But defining what makes a trait fundamental is not easy, giving rise to judicial anxiety that protecting new identities might lead down a slippery slope to protecting all variations in personality. (35) For example, judicial opinions on whether obesity is a protected disability demonstrate that courts are likely to resist extending protection for weight if the question is framed as a right to personality, because, these courts reason, every aspect of an individual's appearance might be said to be central to personality. (36) Additionally, the protection offered by the new immutability may be sparse. The new immutability draws on...