The Importance of Immutability in Employment Discrimination Law

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. …