Academic journal article The Yale Law Journal

Against Immutability

Academic journal article The Yale Law Journal

Against Immutability

Article excerpt


Despite its advantages over the old immutability, there are reasons to object to the revised immutability's suitability as a unified theory of protected traits. This Part will sketch out those objections. It draws empirical support from recent gay rights controversies. (162) I explore these objections with an eye toward how the revised immutability might function as a normative theory of employment discrimination law. (163)

Some of these concerns are normative: first, that the revised immutability masks questionable moral judgments about the blameworthiness of traits and reinvigorates the old theory of immutability; second, that it inserts a highly disputable notion of "personhood" into the doctrine that omits many traits that are stigmatized or irrelevant to any government or employer purpose; and third, that it reinforces stereotypes about the identities it protects.

Other interrelated concerns are strategic: first, that the revised immutability is unlikely to succeed with courts or legislatures because of the difficulty of drawing a principled line between those characteristics that are essential to personhood and those that are not; second, that even if it does succeed, rights based on the new immutability alone will be more limited than other antidiscrimination rights because they will be perceived as negative liberties against state or employer interference, rather than positive demands for equal access; and third, that groups concerned with maintaining traditional social norms may argue their convictions are just as "immutable," requiring compromises that would not be palatable in other contexts, like race discrimination.

After this Part describes the theoretical and empirical bases for these objections, Part III will discuss how these critiques might specifically apply in controversies over protection for traits currently at the borders of employment discrimination law: obesity, pregnancy, and criminal records.

A. Masking Moralizing Judgments

As discussed, the old immutability often rests on untenable, harsh, intrusive, and stigmatizing judgments about the traits for which individuals should receive blame. (164) These judgments are often not just moral, but moralizing: that is, based on superficial assumptions or made without consideration of their broader implications. (165) Cases revising the theory of immutability have not abandoned the core idea of immutability as blamelessness, or the moralizing judgments inextricable from the concept. Rather, these cases have buried immutability under a notion of personhood that protects certain choices already deemed morally acceptable from discrimination. Thus, the revised theory merely mitigates and obscures the untenability, harshness, intrusiveness, and stigma objections to the old. (166) Moreover, the new immutability fails to explain why certain characteristics ought to be protected while others should not. Partial corrections to the theory of immutability run the risk of masking the moral judgments that are its necessary prerequisites, and making a flawed concept more palatable.

The revised immutability may become a Trojan horse: an appealing conceptual package that allows the harsh, intrusive, and stigmatizing judgments that corrupted the old immutability to sneak back into doctrine. As an initial matter, not all courts that revise the immutability factor understand the gravamen of an immutable trait to be its importance for an individual's selfdetermination. (167) Rather, some have merely softened the definition--from "unchanging" to "difficult to change." (168) In Baskin v. Bogan, for example, the Seventh Circuit reformulated the immutability factor to mean, if not unchangeable traits, then "at least tenacious" characteristics, including attributes that are "biological, such as skin color, or a deep psychological commitment, as religious belief often is. …

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