The new immutability also creates a risk that rights based on the doctrine will be less robust than those based on other antidiscrimination theories. This is due to two dynamics. First, arguments based on the new immutability gen- erally employ privacy-like reasoning: an individual has the right to make cer- tain fundamental decisions without interference from government or employ- ers. Privacy rights are traditionally understood as negative liberties, not positive rights that require transformative change. Second, rights premised on the new immutability may be understood as claims to cultural recognition of identities, which can work at cross purposes, politically, with claims to resource redistribution. As a result of these dynamics, rights grounded on the new im- mutability alone may prohibit only overt discrimination. These rights may not garner the full panoply of protections under employment discrimination stat- utes, which require employers to make structural changes to create more inclu- sive workplaces.
Rights based on the new immutability may be limited because the new immutability draws its notion of personhood from privacy doctrine.
2s
4Privacy rights are generally understood as defending individual choices against outside influences.
2s The concept of the individual evoked here is "an autonomous core
-anessential self identifiable after the residue of influence has been sub-
fect freedom, legal and social, to do the action and stand the consequences"' (quoting JOHN STUART MILL, ON LIBERTY 142 (G. Himmelfarb ed., Penguin Classics 1985) (1859))).
250. Id. at 758.
251. See id.
252. See id. at 759.
253. See id. at 760.
254. See supra note 130 and accompanying text.
255. See, e.g., Julie E. Cohen, What Privacy Is for, 126 HARv. L. REV. 1904, 1906-07 (2013) (dis- cussing the prevailing view of U.S. privacy policy).
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tracted.",,
6Rights to privacy thus protect an individual's autonomous core from intrusions by the state, society, or the market. They do not envision the autonomous self as formed through the interaction of the individual with out- side forces (or at least, not in any beneficial way). Thus, they do not see any positive role for the law, society, or the market in changing existing arrange- ments so as to create the conditions under which individuals might better achieve autonomy in self-determination. To give an example: privacy rights to abortion limit the ability of the state to ban that procedure, but do not re- quire that the state make it accessible.
8By contrast, employment discrimina- tion statutes often require affirmative changes to the structure of the workplace to combat bias: these statutes challenge employer practices that subtly perpetu- ate hierarchies' by outlawing certain practices with a disparate impact on mi-
260
chang
nority groups, requiring changes to job requirements or accommodations for certain
employees,6' and allowing affirmative action as a remedy.
The new immutability is also hindered by its emphasis on cultural respect for outsider identities over redistribution of resources to the marginalized. It identifies the problem of discrimination as the lack of respect for an individu-
256. JULIE E. COHEN, CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY OF EvERY- DAY PRACTICE 113 (2012). As a descriptive matter, this view of the self is highly controversial:
"The self has no autonomous, precultural core, nor could it, because we are born and remain situated within social and cultural contexts." Cohen, supra note 255, at 1908.
257. See, e.g., DeShaney v. Winnebago Cry. Dep't of Soc. Servs., 489 U.S. 189, 196 (1989) ("[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.").
258. See, e.g., Maher v. Roe, 432 U.S. 464, 473-74 (1977) (holding that the right to privacy with respect to abortion does not limit the state's ability to restrict public funds for abortions that are not necessary to save a mother's life).
259. See Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 15-16 (2006) (assessing how certain aspects of employment discrimination law can prompt structural changes to the workplace, while acknowledging their limits).
260. See Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2516-18 (2015) (explaining why Title VII and the Age Discrimination in Employment Act of
1967 have been interpreted to include disparate impact claims).
261. See, e.g., 42 U.S.C. § 12112(b)(5)(A) (2012) (requiring that employers "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified indi- vidual with a disability ...unless [the employer] can demonstrate that the accommodation would impose an undue hardship").
262. Id. § 2000e-s(g)(1) ("If the court finds that the respondent has intentionally engaged in ...
an unlawful employment practice . . . , the court may ... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay .. . , or any other equitable relief as the court deems appropriate.").
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al's "sense of self"
,6or choices as to "self-determination.2
64 The harm of dis- crimination is thus characterized in psychological or cultural terms, rather than economic or material ones. Political theorist Nancy Fraser distinguishes be- tween the politics of recognition and the politics of redistribution."'s Struggles for recognition seek to achieve social revaluation of disrespected identities, while efforts to achieve redistribution seek more equitable allotment of material resources.
66Fraser argues that claims for recognition often displace claims for redistribution.2
67Advocates of recognition often ignore redistribution, over- looking the links between the two, seeing inequality as "free-floating" through
"demeaning representations" rather than "socially grounded" in "institutional- ized significations and norms.",,
6"For example, they may not see how "hetero- sexist norms which delegitimate homosexuality" were connected to a social- welfare system that denied resources to gay men and lesbians by prohibiting
them from marrying. 6The success of the gay rights movement might partly be explained by its emphasis on the recognition of a private right to gay identity, rather than the redistributive effects of expanding the right to marriage.
270Thus, in United States v. Windsor, the Court mentioned not only the financial benefits but also the financial obligations that same-sex marriage would entail, such as receiving less federal financial aid for a child's education due to a same-sex spouse's in- come." The emphasis on the costs of marriage suggests that marriage does not
263. See supra note 123 and accompanying text.
264. See supra note 135 and accompanying text.
265. Nancy Fraser, From Redistribution to Recognition?: Dilemmas ofjustice in a 'Postsocialist' Age,
212 NEW LEFT REV. 68, 70-73 (1995). Fraser's distinction between recognition and redistri- bution maps onto the distinction between the cultural and the material. Id. She posits a sep- arate distinction between affirmative and transformative remedies, which maps onto the distinction between corrective and structural reforms. Id. at 82 (defining affirmative reme- dies as those that "correct[] inequitable outcomes of social arrangements without disturbing the underlying framework that generates them" and transformative remedies as those that
"correct[] inequitable outcomes precisely by restructuring the underlying generative frame- work").
266. Id. at 73.
267. Nancy Fraser, Rethinking Recognition, 3 NEw LEFT REV. 107,110 (2000).
268. Id.
269. Id.
270. See Fraser, supra note 265, at 77 (describing the gay rights movement as "quintessentially a matter of recognition").
271. 133 S. Ct. 2675, 2695 (2013) (holding that a federal statute defining marriage to exclude same-sex couples was unconstitutional). In Windsor, a same-sex spouse argued that she qualified for the marital exemption from the federal estate tax, in an amount totaling
$363,053. Id. at 2683. Yet arguments regarding same-sex marriage have not focused on costs
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