The Importance of Immutability in Employment Discrimination Law

By Hoffman, Sharona | William and Mary Law Review, April 2011 | Go to article overview

The Importance of Immutability in Employment Discrimination Law


Hoffman, Sharona, William and Mary Law Review


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 rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Importance of Immutability in Employment Discrimination Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.