The Importance of Immutability in Employment Discrimination Law

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.