RESEARCH praising the new immutability for its potential to extend protections to transgender identity); cf Ann E. This article is concerned with the migration of the new immutability of equal protection cases to new contexts, especially the various laws that prohibit.
THE REVISED THEORY OF IMMUTABILITY
Two Concepts oflmmutability
Protection for Choice
Judge Norris concluded that this does not make sexual orientation "changeable". As examples of how traits considered immutable can be changed, the opinion pointed to sex change through surgery, naturalization of aliens, legitimization of children, and racial death." impossible, but it is. 34;'1" In this formulation, immutability has been transformed into an argument about choice—“a person's fundamental right to self-determination.”3 Cases on the new immutability hold that, if a trait is not.
The Synthesis
For the old immutability, a normative conclusion follows from a descriptive premise: because an individual has never chosen or cannot change a characteristic, that characteristic should not be the basis for discrimination. The revised theory makes immutability more palatable to those who objected to the old version.
Potential for Migration
OBJECTIONS TO THE REVISED IMMUTABILITY
Despite its advantages over the old immutability, there are reasons to object to the suitability of the revised immutability as a unified theory of protected properties. Some of these concerns are normative: first, that revised invariance masks questionable moral judgments about the blameworthiness of traits.
Masking Moralizing Judgments
But the “hard-to-change” definition of immutability remains firmly rooted in notions of “individual responsibility,” requiring the same moralizing judgments as the old immutability.” The Seventh Circuit distinguished “tena-. Courts that follow the Seventh Circuit and operate by this logic can simply apply the old immutability."17. 34;Sexual orientation is a normal expression of human sexuality, generally unchosen, and highly resistant to change." APA Brief, supra note 2, at 7-9.
34; Gays and lesbians form stable, committed relationships that are equivalent in essential respects to heterosexual relationships.” Id.
Excluding Inessential and Stigmatized Traits
34;[h] homosexual orientation may be part of the very fiber of an individual's personality."" o Janet Halley described this definition of homosexual identity as ""a definition of personality," in which the class of homosexuals is defined by a form of personality shared by its members." "o1. For many multiracial individuals, for example, racial identity can be experienced as manipulable and changing over time," or irrelevant to a fundamental sense of self." Many forms of disability, too. , can fall into cracks of revised immutability, as conditions subject to control and yet rarely celebrated as features of identity. who says: "The evolution of public opinion enabled decisions about the marriage of this Term, but conflict over the law contributed significantly to the change of public views. ".
Furthermore, the omission of many stigmatized characteristics undermines the aim of anti-discrimination legislation to eradicate demeaning forms of subjugation.
Reinforcing Stereotypes
Those born into the priestly caste are confined to the role of priest even if they prefer to fight rather than pray, and vice versa.” Such a caste system, though not subservient, would implicate the Constitution's guarantee of equal liberty. " . However, the injury of stereotyping, if conceived as a limitation on an individual's possibilities, is not limited to rigid roles assigned at birth, during childhood, or at some other stage of relative innocence.
For example, women's preferences for cooperation and men's preferences for competition may be the result of systemic stereotypes or patterns of discrimination that reward conformity to the stereotype, with the resulting conformity later viewed as evidence of the "truth" of the generalization.
Creating Line-Drawing Problems
Questionable stereotypes also include generalizations that are accurate to some degree." Statistically sound generalizations about identity groups—for example, that most women prefer cooperative rather than competitive environments—can be suspect for a number of reasons." based generalizations, including many based on sex, "are used for purposes that go far beyond the predictive ability of the generalization," "one might say that they are generally questionable sex-based generalizations, are this kind of questionable" . stereotype, which has historically been used as a dubious proxy for competencies ranging from strength to intelligence.4o In addition, generalizations can be self-fulfilling prophecies. Line-drawing problems are often articulated as hypothetical consequences of proposed theories, through gateway metaphors. of flooding and slippery slopes." Concerns about drawing the lines have purchase in public debate" and in courtrooms24 This is especially true in equal protection cases, in which. wave of groups seeking protection based on this characteristic." For example, the Supreme Court has refused to extend the treatment of suspects to the class of "mentally retarded," for lack of a "principled way" to distinguish this group by "the elderly, the disabled, the mentally ill, and the infirm." Even when statutes define protected classifications, the texts cannot answer every possible question of application, and courts must use common law reasoning to decide which features fall under the protection of the statute.
Virtually every action a person takes could be said to be part of his self-definition.'8 The claim that the right to privacy should protect decisions that are crucial to personality could be qualified with an exception for decisions that To cause damage. to others."' But "[t]he minute someone begins to...
Limiting Rights to Privacy and Recognition
34;The self has no autonomous, pre-cultural core, nor could it because we are born into and remain situated within social and cultural contexts.” Cohen, supra note 255, at 1908. Our cases have recognized that due process clauses are generally not confer no affirmative right to governmental assistance, even where such assistance may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual."). 2000e-s(g)(1) ("If the court finds, that the defendant willfully engaged in .. an unlawful employment practice . . ., the court may . retroactively .. , or any other equitable relief the court deems appropriate.”).
Windsor, the Court cited not only the financial benefits but also the financial liabilities that same-sex marriage would entail, such as receiving less federal financial aid for a child's education because of a same-sex spouse." costs of marriage suggest, that marriage does not.
Inviting Conflict
APPLYING THE REVISED IMMUTABILITY TO NEW CONTEXTS
He argues that, due to objections from earlier work, the new immutability fails to capture the wrongness of these forms of discrimination and may be counterproductive as a strategy to improve protection. Weight is unlikely to pass the test of new immutability because it is not seen as important by many and is often a source of stigma. Furthermore, the courts resist the argument that weight is essential to personhood, as the same could be said for most aspects of appearance.
The new immutability offers no obvious arguments against the use of criminal background checks to screen out job applicants and may even promote discrimination against ex-offenders by implying that criminal behavior is a fundamental personality trait.
Weight
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” The law also prohibits discrimination based on “a record of such an impairment.” Id. 2011, the EEOC's Interpretive Guidance on the definition of disability states that "except in rare circumstances, obesity is not considered a disabling disability."
Iowa If the case hinges on [the employer's] perception, evidence consisting solely of a belief that a physical characteristic presents an undesirable image or appearance does not support an inference that [the employer] viewed [the plaintiffs'] weight problem as related to a physiological disorder or condition.");.
Pregnancy
Bridges, supra note 16o, at S]exual Assault [laws making it a felony for a rapist who causes his victim to become pregnant] are somewhat of an exception because it is rare for the law to embrace and reflect a subversive understanding of pregnancy. ."). The Eighth Circuit has ruled that employers can refuse to cover contraception as long as it is not covered for men (condoms) and women (birth control pills), on the grounds that contraceptive services are inherently different from other forms of preventive health care." 9. 34; But UPS argued that it did not accept all disabled workers who are not pregnant.” For example, UPS would not accept a worker who suffered minor injuries.
The court noted that the government had also argued that the birth control mandate was required for reasons of public health and gender equality, but it found those concerns without sufficient "focus[]." Id.
Criminal Records
BEYOND IMMUTABILITY
This Part considers alternatives to revising the theory of immutability for those interested in extending employment discrimination law to new forms of prejudice. It examines two potential approaches: (1) universalizing a rule that employers only require qualifications that are both job-related and reasonable, and. 2) incremental expansion of targeted antidiscrimination protections through legislative, judicial, or employer prohibitions on additional forms of systemic bias. It thus suggests attempts at incremental expansion of antidiscrimination categories based on analogies between old forms of prejudice and new ones that do not rely on expanding the concept of immutability.
In particular, he argues for examining whether prejudice creates systemic constraints on equal opportunity.
Universalizing a Reasonable Relationship Requirement?
See Arnow-Richman, supra note 467, at 1092 (explaining that advocates have not followed universal accommodation mandates because of employers' cost concerns); Theodore J. Bagenstos, supra note 475, at Since universalists argue that their preferred policies will solve problems that are broader and different from those solved by targeted policies, it should come as no surprise that universalist solutions will not always fare as well at solve the problems for which targeted policies are designed."). 292, 301 n.21 (N.D. Tex. The purpose of Title VII to overcome stereotypical thinking about the work abilities of the sexes would be undermined if customers' expectations, preferences, and prejudices have been allowed to determine the validity of gender discrimination in employment.”).
See BAGENSTOS, supra note 474, at 54 (concluding, in the context of disability rights law, that the case for universalism "would be well worth making, but its prospects are politically very dubious").
Targeting Systemic Biases
Mark Kelman, (Why) Does Gender Equity in College Athletics Entail Gender Equality?, 7 S. 34; It is not simply that, in designing the legal regime, we care less about the person who was denied employment for the illegal reason of reminding the employer of the employer's. A focus on pervasive biases is consistent with the goal of breaking pervasive patterns of discrimination that assign group statuses to individuals and thus limit their range of opportunities.2. It is also considered that the decision not to be employed in such a case does not confirm traditional social hierarchies based on status, express the social power of one group over another, or contribute to ambivalent self-loathing.”).
However, Fishkin emphasizes that the “race-based and race-neutral” analyzes of this issue are “highly complementary.” ID card.
