The importance of immutability in employment discrimination law.

AuthorHoffman, Sharona

ABSTRACT

This Article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 2009, two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article's original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term "immutable characteristic" in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment discrimination laws. Immutability, however, does not explain why other characteristics that are equally unalterable are excluded from the statutory scheme. Thus, the Article concludes that the employment discrimination laws lack coherence. While the laws extend even to fringe religions, such as white supremacy, they disregard a variety of traits that are fundamental to identity, including sexual orientation, parental status, and others. A focus on the concept of immutability can shed new light on the achievements and limitations of the antidiscrimination mandates and serve as an impetus to provide more comprehensive protection to American workers.

TABLE OF CONTENTS INTRODUCTION I. PROTECTED STATUS UNDER THE EMPLOYMENT DISCRIMINATION LAWS A. The Federal Antidiscrimination Laws: The Pre-2008 Landscape B. The New Additions: GINA and the ADAAA 1. The Genetic Information Nondiscrimination Act 2. The ADA Amendments Act a. Textual Changes b. How Broad Is the ADA's Post-Amendment Coverage? II. FINDING A UNIFYING PRINCIPLE A. Discrete and Insular Minorities with a History of Discrimination B. The Formal Equality Model C. Immutable Characteristics III. THE CONCEPT OF IMMUTABILITY A. Immutability in Constitutional Analysis 1. The Relevance of Immutability 2. The Meaning of Immutability B. Immutability in the Employment Discrimination Statutes 1. Immutable Characteristics as Accidents of Birth 2. Immutable Characteristics as Unchangeable or Fundamental to Identity 3. Why Should Immutable Characteristics Be Protected? IV. Is IMMUTABILITY THE WHOLE ANSWER? A. Immutable Traits Not Generally Associated with Discrimination B. Judgments About What Is Fundamental to Identity C. The Most Puzzling Exclusions 1. Sexual Orientation 2. Appearance 3. Parental Status 4. Marital Status 5. Political Affiliation V. THE IMPLICATIONS OF IMMUTABILITY A. Immutability as the Rationale for Protected Status B. Immutability as a Liberalizing Force C. Immutability and Reasonable Accommodation CONCLUSION INTRODUCTION

The field of employment discrimination has undergone significant transformation during the past two years. The Genetic Information Nondiscrimination Act (GINA) (1) was enacted on May 21, 2008, and its employment provisions became effective on November 21, 2009. (2) Shortly thereafter, the Americans with Disabilities Act Amendments Act (ADAAA) (3) was signed into law on September 25, 2008, and became effective on January 1, 2009. (4) This Article analyzes how these new legal provisions illuminate the purpose of the corpus of law known as the employment discrimination statutes. It argues that the passage of GINA and the ADAAA, which expand the civil rights laws' antidiscrimination protection based on biological characteristics, requires a renewed focus on the concept of immutable characteristics. The Article offers an original, comprehensive analysis of the meaning of the term "immutable characteristic." It then explores whether the term accurately describes the attributes that are protected by the employment discrimination laws.

The employment discrimination statutes instruct employers that there are particular characteristics that generally may not be considered for purposes of employment decisions. These characteristics are race, color, national origin, sex, pregnancy, religion, age, disability, genetic information, and citizenship status. (5) Is there, however, a unifying conceptual framework that explains the choices we have made concerning the scope of the civil rights laws? Why are employers prohibited from considering some attributes, such as sex or national origin, but not others, such as political viewpoint, appearance, marital or parental status, or sexual orientation? (6) Do GINA and the ADAAA elucidate the nature of protected classifications, or do they cause further obfuscation? In short, what is the project of the employment discrimination statutes?

Certainly, the passions and vicissitudes of politics strongly influence what legislation is passed. Nevertheless, the antidiscrimination endeavor is motivated by a desire to promote fairness and justice. Consequently, this Article argues that careful scrutiny of the laws reveals a distinct theme.

This Article maintains that the concept of immutability brings us closest to an understanding of the antidiscrimination mandates in employment law. It is arguable that the employment discrimination laws are designed to protect discrete and insular minorities with a history of discrimination (7) or to prohibit consideration of traits that are irrelevant to job performance. (8) Each of these theories, however, is flawed, and immutability more accurately describes the characteristics protected by the employment discrimination statutes.

Nevertheless, although immutability explains the included characteristics, it fails to explain some of the most notable exclusions from the statutory scope. In fact, no coherent theory can be developed to elucidate why some unalterable traits are awarded protected status by federal law and others are not. (9) It is noteworthy that some state laws cover traits that are not addressed by federal statutes, (10) but state law varies significantly in scope and contents and thus constitutes a patchwork. Only federal law can provide comprehensive protection to workers across the nation. The recent additions of GINA and the ADAAA may occasion an opportunity to reexamine the purpose of the law and create a more rational and comprehensive legislative protective scheme.

The Article makes several original contributions. Part I, which describes the antidiscrimination laws both before and after 2008, analyzes the ADAAA's revised definition of "disability" and explores whether any lasting physical or mental disabilities will be disqualifled from protected status. (11) Part II outlines a variety of theories that have been used to explain the statutory employment discrimination endeavor and demonstrates that prohibiting discrimination based on selected immutable characteristics most accurately describes the laws' achievement. Part III thoroughly explores the meaning of the term "immutable characteristic" in both constitutional and employment discrimination jurisprudence. It formulates two alternative definitions of the term: (1) a characteristic that is an accident of birth, or (2) a characteristic that is unchangeable or so fundamental to personal identity that workers effectively cannot and should not be required to change it for employment purposes. (12) Part IV discusses a variety of traits that are immutable but are omitted from statutory protection and evaluates whether each type of exclusion is reasonable. (13) Part V develops the argument that the concept of immutability can be a liberalizing force that may spur the addition of new protected classifications to the employment discrimination laws. (14) It also analyzes the relevance of immutability to reasonable accommodation and argues that immutability may explain the legislature's ambivalence about the accommodation mandate. (15)

  1. PROTECTED STATUS UNDER THE EMPLOYMENT DISCRIMINATION LAWS

    The federal employment discrimination laws prohibit discrimination based on the following categories: race, color, national origin, sex, pregnancy, religion, age, disability, genetic information, and citizenship status. (16) This Part will describe the traditional grounds for antidiscrimination protection and the most recent changes to the employment discrimination field embodied in GINA and the ADAAA.

    1. The Federal Antidiscrimination Laws: The Pre-2008 Landscape

      During the second half of the twentieth century, a variety of federal laws established antidiscrimination mandates to protect American workers. The broadest, Title VII of the Civil Rights Act of 1964 (Title VII), prohibits discrimination based on "race, color, religion, sex, or national origin." (17) Sex discrimination includes adverse decisions made because of "pregnancy, childbirth, or related medical conditions." (18)

      Several other laws are narrower in scope. The Equal Pay Act (EPA) addresses salary disparities based on sex. (19) The Age Discrimination in Employment Act (ADEA) protects individuals who are forty years old and older against age discrimination. (20) The Immigration Reform and Control Act (IRCA) prohibits discrimination based on national origin or citizenship status against individuals who are entitled to work in the United States. (21)

      The Rehabilitation Act of 1973 (Rehabilitation Act) and the 1990 Americans with Disabilities Act (ADA) are designed to protect workers against discrimination based on disability. (22) The Rehabilitation Act applies only to programs and activities "receiving Federal financial assistance" or "conducted by any Executive agency or by the United States Postal Service." (23) The ADA extended the antidiscrimination mandate to all public and private employers with fifteen or more employees. (24) The laws not only prohibit employers from making disability-based adverse decisions, but also require them to provide reasonable accommodations to qualified individuals with disabilities. (25)

      However, the ADA's original definition of "disability" challenged litigants and courts. (26) The ADA defined the term...

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