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The Importance of Immutability in Employment Discrimination Law

65 Pages Posted: 22 Sep 2010 Last revised: 2 Apr 2015

Sharona Hoffman

Case Western Reserve University School of Law

Date Written: September 1, 2010

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, I conclude that the employment discrimination laws lack coherence. While they 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 anti-discrimination mandates and serve as an impetus to provide more comprehensive protection to American workers.

Keywords: Employment Law, Constitutional Law, Discrimination, Genetic Information Nondiscrimination Act (GINA), Americans with Disabilities Act Amendments Act (ADAAA), “immutable characteristic”, Unalterable Characteristics , Sexual Orientation, Appearance, Parental Status, Marital Status, Political Affiliati

JEL Classification: K29, K31, K39

Suggested Citation

Hoffman, Sharona, The Importance of Immutability in Employment Discrimination Law (September 1, 2010). 52 William & Mary Law Review 1483 (2011); Case Legal Studies Research Paper No. 2010-32. Available at SSRN: https://ssrn.com/abstract=1680512

Sharona Hoffman (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3860 (Phone)

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