Against Immutability

Abstract

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and criminal records. It argues that the new immutability does not avoid the old version’s troublesome judgments about which traits are morally blameworthy and introduces new difficulties by requiring problematic judgments about which traits are important. Ultimately, immutability considerations of both the old and new varieties distract from the aim of employment discrimination law: targeting unreasonable and systemic forms of bias.