Arguments about mutability, defined as personal responsibility, undergird opposition to rules that would circumscribe employers' ability to automatically decline job applicants with criminal records. A wide range of employers conduct background checks on job applicants to screen for criminal histories. (418) An industry of commercial vendors collects criminal records in databases and provides employers with computerized reports on job applicants. (419) The practice makes it difficult for many people to find employment. By one estimate, one in four American adults has some sort of criminal record. (420) And African Americans and Hispanics are more likely to have been arrested or incarcerated by substantial margins. (421) Whether higher rates of crime among minorities could explain these disparities is disputed; consider, for example, that whites and minorities engage in similar rates of drug possession and sales, yet minorities are far more likely to be convicted of drug offenses. (422) Discrimination against ex-offenders in the workplace is compounded by racial discrimination. Sociologist Devah Pager has conducted well-known audit studies in which white and black testers applied for jobs with identical resumes, varying only in that sometimes the testers were given criminal histories. (423) In one study, the white applicants received half as many callbacks when saddled with a criminal history, while the black applicants received only one third as many callbacks when saddled with a criminal history. (424)
Automatic exclusion of job applicants with criminal records arguably violates Title VII's prohibition on race discrimination. Title VII forbids not only intentional discrimination but also employment practices that are "fair in form, but discriminatory in operation" on the theory of disparate impact discrimination. (425) To prove a prima facie case of disparate impact discrimination, a plaintiff generally presents statistics showing that a particular employment practice has an adverse impact on the basis of a protected trait. (426) In its 2012 guidance on the question, the EEOC took the position that national data suffices to demonstrate that employer exclusions based on criminal records have a disparate impact based on race. (427) An employer, however, may defend against a charge of disparate impact discrimination by showing that the practice is "job related for the position in question and consistent with business necessity." (428) The EEOC has advised that exclusions based on arrests alone are not eligible for this defense because "[t]he fact of an arrest does not establish that criminal conduct has occurred." (429) While a conviction does establish criminal conduct, the EEOC maintains that "[i]n certain circumstances ... there may be reasons for an employer not to rely on the conviction record alone." (430) An employer's policy may be justified if it includes, for example, some sort of individualized assessment, considering "at least the nature of the crime, the time elapsed, and the nature of the job." (431) Apart from Title VII, eighteen states have enacted legislation known as "ban the box" which prohibits certain employers from asking about criminal records on job applications, although employers are not precluded from considering criminal history at later stages in the hiring process. (432)
Employers screen applicants for a variety of utilitarian reasons. For example, they screen to prevent theft and fraud in the workplace, ensure the safety of other workers or customers, or avoid liability for negligent hiring. (433) But this type of employer risk management runs counter to the public policy goal of reducing recidivism by encouraging ex-offenders to find employment. (434) Setting aside the normative question of whether employers should bear the costs of public policy goals, there are empirical questions about the level of risk that ex-offenders pose to employers. Support for the specific claim that all those with criminal records are more likely to commit workplace misconduct is lacking. (435) Criminal history reports are likely to be inaccurate, especially those from commercial vendors. (436) Many include incorrect information, such as convictions that have been expunged by court order. (437) And some employers are screening out applicants with any type of criminal history, regardless of the severity or nature of the offense, (438) whether the arrest led to a conviction, (439) or how long ago it occurred. (440) Criminologists generally agree most people who commit crimes eventually desist, and some research suggests that the likelihood that certain individuals who have not re-offended for a number of years will commit crimes may be close to that of those without criminal records. (441) Other factors, such as youth, may correlate with crime, yet employers do not argue that the correlation is a basis for screening out younger workers. (442)
Immutability's logic is exerting influence here. A criminal record may be immutable in the sense of being virtually impossible to change, considering the difficulty of expungement. (443) But a criminal record may be mutable in the sense that the decision to commit a crime was within an individual's control and responsibility. Opponents of the EEOC's enforcement policy have made clear that ex-offenders are morally responsible for their lack of employment opportunities. One theme of opposition to the EEOC's enforcement guidance is that it represents "the illegitimate expansion of Title VII protection to former criminals." (444) A Heritage Foundation report argued, "[i]t is not racial discrimination that deprives felons, black or white, of their ability to obtain employment 'but their own decision to commit an act for which they assume the risks of detection and punishment.'" (445) A letter from nine states' Attorneys General objected to the EEOC's guidance by arguing that "[y]our real target appears to be the perceived unfairness of judging an individual--of any race--solely by his or her past criminal behavior." (446) An early district court opinion put it more bluntly: "If Hispanics do not wish to be discriminated against because they have been convicted of theft then, they should stop stealing." (447)
Opposition to the EEOC policy is also rooted in the endorsement of employers' moral judgments about ex-offenders. These judgments are phrased in terms of ex-offenders' inherent lack of trustworthiness as a class. In one district court case, even though the employer's business reasons for conducting background checks were not at issue, the judge found it necessary to begin his opinion with a lengthy explanation of the "obvious," "rational," and "legitimate" reasons for conducting criminal history and credit background checks, to avoid hiring those who "appear to be untrustworthy and unreliable." (448) Similarly, in their letter to the EEOC opposing its enforcement guidance, the states' Attorneys General wrote that "[a] criminal background may ... be indicative of a lack of dependability, reliability, or trustworthiness." (449)
The new immutability--with its emphasis on psychological understandings of personality, its attempts to avoid the trauma of being asked to change a fundamental trait, and its exaltation of self-determination--does not suggest any obvious arguments for prohibiting discrimination on the basis of criminal records. The new immutability does not counter the moral judgments condemning ex-offenders. (450) It is difficult even to find an example of an ex-offender staking a political claim that criminal records are fundamental to personality. (451) Amy Myrick has offered a sociological account of the depersonalization that individuals often experience when inquiring about expungement or sealing of criminal records. (452) Rather than viewing their criminal records as fundamental to their personalities, those confronting their records "felt reduced to pieces of personal information that did not represent a holistic identity, even a deviant one." (453) Myrick's clients offered accounts of their own identities that "were antithetical to the records' way of representing, or misrepresenting" them. (454) These accounts have two recurrent features: emphasis on "personal changes over time" and assertion of "social identities of parent, worker, and property owner" rather than criminal. (455) Somewhat like those overweight individuals who see their true, essential selves as thin, ex-offenders may see their true, essential selves as law-abiding. (456)
In this context, the new immutability reinforces stereotypes. (457) If anything, the new immutability may introduce a type of "criminal essentialism" that lends support to employer arguments for excluding those with criminal records. (458) Many psychologists assume that personality is continuous and reliable--in other words, immutable--and offenders are not likely to desist from criminal behavior. (459) Advocates of background checks might concede that the underlying identity, that of a "criminal," is fundamental--if not in the old sense of being impossible to change because it is determined by social, economic, and genetic factors, then in the new sense of being highly impervious to change, requiring the traumatic experience of remorse and repentance for one's crimes, and giving up the life of a criminal. (460) Such views lend support to employer arguments that ex-offenders are untrustworthy and that blanket hiring bans are sound practices. These arguments are bolstered by the assumption that criminality is immutable as a fundamental aspect of personality.
The new immutability may gain more traction if the question were reframed as protecting not the identity of the criminal but rather the identity of the ex-offender who has desisted from crime. (461) Advocates of "ban the box" policies and other protections for ex-offenders use narratives of redemption and the rhetoric of second chances to promote their cause. Consider the following example from a report by the National Employment Law Project:
Like many, Darrell Langdon struggled with addiction in his youth. Now 52 and having raised two sons as a single father, Darrell, through his strength of character, has been sober for over twenty years. Although he has moved forward in life through hard-won rehabilitation, his 25-year-old felony conviction for possession of cocaine remains. (462)
This vignette appeals to a notion of fundamental character, a true self that is emerging through the hard work of rehabilitation and proven over twenty-five years of sobriety, a life redeemed through the socially valuable work of childrearing.
But this is too much of a stretch for the new immutability, which is about characteristics so fundamental no one should be asked to change them. Instead, the argument from the new immutability is that even if he could have his conviction expunged, Langdon should not have to, because his conviction was a formative and important part of his life's journey toward redemption. The problem with this claim, however, is that it casts criminal conduct as necessary rather than regrettable, a claim unlikely to have political purchase, and one that does not fit with the narrative of crime as an unfortunate aberration from an individual's fundamentally good character. The new immutability would understand crime as constitutive of character.
As a strategic matter, arguments based on the new immutability also fall flat with respect to criminal records for other reasons. In contrast to the pregnancy and obesity examples, where the concern is that protection would lead down a slippery slope, ex-offenders are already at the bottom of the slope, the reductio ad absurdum of expansive concepts of the protected class. It seemed obvious to Judge Norris, when he expounded on immutability, that "discrimination exists against some groups because the animus is warranted--no one could seriously argue that burglars form a suspect class." (463)
Thus, the revised immutability is only likely to strengthen resistance to legal rules that might require employers to perform more careful criminal background checks.
As this Part has demonstrated, courts impose implicit immutability requirements not supported by statutory text when interpreting employment discrimination law. Immutability concerns also feature in public opinion and political debates over executive enforcement of employment discrimination law and expansion of state and local laws to cover new forms of discrimination. While discrimination on the basis of weight, pregnancy, and criminal records is often considered job-related, arguments about job qualifications are infused with moralizing judgments about persons in the abstract. These moralizing judgments are problematic for all the reasons described by critics of luck egalitarianism. They rest on untenable assumptions about chance and choice, like the idea that pregnancy alone, among all potentially disabling conditions, is within an individual's control and therefore need not be accommodated by the workplace. They are harsh, like the argument that ex-offenders should be automatically and permanently denied entry to the job market. They are intrusive, like demands that workers conform to ideal norms regarding body size. Employers may believe they are creating incentives for better behavior (weight loss, personal responsibility for procreation, law-abiding conduct). But shaming and blaming can backfire, causing social dysfunction as their targets cope with the assignment of spoiled identities.
Rather than providing an easy rebuttal, the revised version of immutability first obscures these moralizing judgments and then raises new barriers to protection. The idea that weight, pregnancy, or a criminal record might be an essential aspect of personhood, to be romanticized and protected, fails to resonate because many experience these conditions as negative, neutral, or immaterial to personality. Rather than countering stereotypes, the new immutability reinforces them by suggesting that such traits are essential aspects of personality. The new immutability may even lend credence to arguments that traits like obesity, pregnancy, and ex-offender status are good predictors of future behavior. Courts have difficulty imagining what distinguishes these traits from all other choices that individuals may consider fundamental. To the extent it might be accepted, the new immutability rationale provides a lower tier of protection than that afforded to classifications such as race and sex. In this lower tier, it becomes more difficult to argue that civil rights obligations might override employer cost concerns or conflicting "immutable" convictions such as religious objections.
IV. BEYOND IMMUTABILITY
This Part considers alternatives to revising the theory of immutability for those interested in expanding employment discrimination law to new forms of bias. 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 protection through legislative, judicial, or employer prohibitions on additional forms of systemic bias. It argues that universal approaches, while theoretically appealing, may not be politically possible in any form that would effectively address inequality. Thus, it suggests efforts toward incremental expansion of antidiscrimination categories based on analogies between old forms of bias and new that do not rely on stretching the concept of immutability. In particular, it argues for consideration of whether biases create systemic limits on equal opportunity. (464)
A. Universalizing a Reasonable Relationship Requirement?
An often-suggested solution to the problem of identifying suspect classifications is to universalize antidiscrimination protections. (465) Workers in the United States are not universally protected against unfair treatment. The default position in the United States is at-will employment, meaning employers may hire, promote, demote, compensate, or fire employees without cause. (466) Likewise, employers are not generally required to accommodate the needs of workers on such matters as job duties, scheduling, or the physical workspace. (467) Employment discrimination law, among other regulatory regimes, provides exceptions to these defaults, forbidding adverse treatment on the basis of enumerated traits such as race and sex, (468) and requiring accommodations for workers with disabilities or religious commitments. (469) Employment discrimination law contains defenses, for example, when an employer can show that a trait such as sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business" (BFOQ), (470) when a policy with a disparate impact is "job related for the position in question and consistent with business necessity," (471) or when an accommodation would pose an "undue hardship." (472)
Targeted approaches isolate certain identity traits as bases for legal interventions into employer decision making. Instead, we might imagine a universal model of workplace protection, in which employers would need to show cause for all personnel decisions. For example, the District of Columbia's Human Rights Act was enacted "to secure an end ... to discrimination for any reason other than that of individual merit." (473) Similarly, some proposed legal reforms would require employers to have a reasonable basis for rejecting any request for worker accommodation. (474) These approaches would not single out particular groups, traits, or biases for scrutiny; rather, they would evaluate employment decisions based on their reasonableness in terms of business needs. Such approaches may be normatively superior to targeted expansion of discrimination law, but come with significant strategic disadvantages for those concerned about inequality.
As a normative matter, universal policies may be superior to focused interventions in that they guarantee important rights to liberty, dignity, and job security, raising the baseline of protection for all workers. (475) Universal policies would eliminate the difficult hurdle of proving discriminatory intent, the cause of death for many employment discrimination cases. (476) And they would include all forms of discrimination not justified by job requirements or employer necessity, including much discrimination on the basis of weight, pregnancy, and criminal records. Universal approaches to workplace protection may have political traction in that they expand the potential constituency for change from minority groups to all workers, avoid the characterization of employment opportunities as zero-sum, evade the problem of fatigue with identity politics, and eliminate the fraught task of defining the beneficiary class. (477)
Yet there are reasons to be concerned that universal protections may not eliminate discrimination as well as targeted approaches. In other work, I have called these problems "dilution" and "assimilation." (478) Dilution occurs when a right must be narrowed to be extended to more claimants, or when the expansion of rights strains the resources of enforcers, reducing protection for those who need it most. (479) For example, the proposed Model Employment Termination Act, which would prohibit discharge of employees without "good cause," would apply only to terminations, not hiring or other aspects of employment; would limit employees to streamlined arbitral procedures rather than litigation; and would offer workers fewer remedies than employment discrimination law. (480) Legislative proposals to expand accommodations beyond protected traits may limit a worker's right to that of requesting the accommodation and receiving consideration from the employer, without imposing a duty on the employer to accept reasonable requests. (481) The assessment is that compromise is required to ensure judicial and political will for such broad disruptions of employer prerogatives. (482)
The assimilation problem is that universal solutions often have goals other than the disruption of biases and inequality. (483) Equality, as a goal, is thought to be folded into other goals, such as providing universal job stability or protecting the liberties of all workers against employer intrusion. But in the enforcement and application of universal rules, equality norms may be obscured and subverted. Imposing a rationality or reasonableness requirement for certain personnel decisions is unlikely to weed out discriminatory practices because, in many cases, discrimination may be cost effective. (484) Discrimination may allow employers to use statistically sound generalizations as efficient sorting mechanisms; (485) to maintain a homogenous workforce that can be managed more efficiently; (486) to cater to the preferences of clients, customers, or co-workers for certain types of employees; (487) and to avoid the risk that minority employees will bring litigation over workplace conditions such as harassment, denial of promotion, or termination. (488) Moreover, most proposals would only protect employees from unfair termination, rather than requiring fairness in hiring or in the terms and conditions of employment. (489) Some analysis of the European experience suggests that without a commitment to antidiscrimination in hiring, job protection for incumbent employees locks members of subordinated groups out of opportunities. (490)
Simply requiring that employers evaluate potential employees based on "merit" would not call into question discrimination based on weight, pregnancy, or criminal records, insofar as employers and judges implicitly and explicitly consider these factors demonstrative of character, commitment, and integrity. Adding the requirement that discrimination be "job-related" would better address these biases, as an employer may find it difficult to convince a court that weight, for example, has any relationship to a sedentary back-office job. However, employer arguments gain plausibility if that office is in an image-conscious industry, or if the job is a highly visible one that requires that the employee inspire confidence. (491) In employment discrimination law, courts reject the argument that employers must engage in sex discrimination to cater to customer preferences for men or women in certain jobs, reasoning that employers are merely acting as conduits for societal discrimination. (492) Employment discrimination law requires scrutiny of sexist stereotypes by explicitly forbidding discrimination based on sex. A simple job-relatedness rule, by contrast, would not forbid an employer from catering to such prejudices. If the law does not delineate certain widespread biases as subject to scrutiny, it may not prompt critical examination of those biases. (493)
A law that imposes some sort of universal requirement, while also delineating prohibited bases for discrimination and not watering down remedies or resources, may be the most normatively desirable policy outcome for those concerned about employee rights generally as well as equal opportunity. Yet there are reasons to doubt whether such an approach is a viable strategy. Despite the strategic appeal of universal solutions in the abstract, there is little political support at present for a revolution in at-will employment. (494) Joseph Fishkin has described such proposals as "non-starter[s]" because they "run rough shod over our law's commitment to leaving employers substantial discretion over whom to hire, promote, and fire." (495) Recent history suggests changes to workplace regulation are more likely to be incremental than revolutionary, occurring through the expansion of existing categories by courts and the addition of new ones by legislatures, at subnational as well as national levels, and by private employers as well as governments. (496)
B. Targeting Systemic Biases
This Part proposes incremental expansion of employment discrimination law with the goal of targeting systemic forms of bias, rather than the goal of protecting immutable traits. This project has both legal and political dimensions. Legally, it could entail judicial recognition that systemic biases--such as those based on weight, pregnancy, and criminal records--fall within the categories of disability, sex, and race discrimination. Politically, it could entail the enactment of new rules by legislative bodies or employers that would prohibit certain forms of discrimination on the basis of additional enumerated biases. Rather than revising the concept of immutability, advocates might expose the moralizing nature of judgments about "mutable" traits that are the bases of systemic forms of inequality. This Part will begin by describing a systemic bias approach and discussing its merits relative to universal protections or arguments from immutability. It will then apply this approach to discriminatory practices based on weight, pregnancy, and criminal records.
By systemic biases, I refer to discriminatory practices that are both structural and pervasive. (497) Structural approaches to employment discrimination are concerned with whether institutional practices contribute to unequal opportunity, rather than the guilt or innocence of particular types of victims or perpetrators. Structural accounts of discrimination locate the causes and consequences of inequality in social and institutional practices, arrangements, and systems. (498) They change the focus from individuals and their choices to how workplace structures "contribute] to the production or expression of bias." (499) The structural approach's focus on the workplace itself as the cause of inequality creates an argument for legal intrusion into the prerogatives of employers. (500) By contrast, immutability arguments look to whether the victims of discrimination, considered as a class or group, deserve protection. (501) Because they are understood as based on bad or costly "choices" (gluttony, sex, criminal behavior), certain traits receive limited or no protection. Victims of these forms of discrimination have lost their innocence, unlike those who did not choose their race or sex, and so the analogy to race or sex fails. The problem with analogical arguments that compare groups in this manner is that they "promote the idea that the traits of subordinated groups, rather than the dynamics of subordination, are the normatively important thing to notice." (502) Thus, a structural frame would put this Article's question not as which classes should be protected, but which forms of bias the law should disrupt.
Pervasive forms of bias connect to larger social systems of hierarchy and segregation and contribute to broader problems of inequality. (503) The focus on pervasive biases differentiates a targeted approach from a universal one and provides a limiting principle. (504) Unlike isolated instances of workplace unfairness, pervasive biases substantially limit the opportunities of affected individuals. (505) For example, "victims of sex discrimination will encounter it in workplace after workplace," (506) while a man who is fired because, for example, "he reminded the employer of the employer's hated stepfather" is unlikely to ever encounter this same unreasonable prejudice again. (507) But the difference is not just that a victim of sex discrimination has diminished prospects for finding another job: the problem is also that sex discrimination reinforces larger patterns of superficial prejudice, stereotyping, and stigmatization. (508)
Whether a bias is pervasive in the sense of being widespread might be demonstrated through quantitative measures. (509) But qualitative measures are also important; for example, patterns of bias might be pervasive because they are self-reinforcing: discouraging those affected from pursuing opportunities and limiting the options available to them, or distorting judgments about those identified as group members. (510) Or these forms of inequality might be complex in that they spill across more than one domain of social life, such as in employment, education, housing, the family, or politics. (511) The focus on pervasive biases accords with the aim of disrupting wholesale patterns of discrimination that assign group-based statuses to individuals so as to limit their range of opportunities. (512)
This systemic bias approach is both provisional and open-ended. It is provisional because it is not the aim of this Article to provide a unified theory of protected traits. Rather, this Part aims only to sketch out a potential alternative to the revised immutability that might be more normatively attractive and politically feasible.
This approach is open-ended in that, beyond asking about whether systemic biases attach to particular traits, it does not take sides in debates about the forms of bias that equality law should prohibit. As previously discussed, equality law already recognizes that biases may be prohibited because, for example, they are generally superficial (judging on a basis that is not, or need not, be required for the job), (513) stigmatizing (demeaning or subordinating based on identity), (514) or stereotyping (making assumptions about roles and competences based on group status). (515) This Article does not attempt to resolve debates among these theories; rather, it has argued that the revised immutability subverts the goals of eliminating each of these forms of bias, (516) and thus employment discrimination law requires a more inclusive theory of discrimination.
Some might argue that immutability could be stretched to encompass systemic biases. Susan Schmeiser, in her analysis of the new immutability, applauds those courts she sees as asking not whether a trait is immutable, but whether discrimination on the basis of that trait has been immutable. (517) She argues for a "reading of immutability ... that turns not on the significance of individual self-definition or the question of volition, but rather on the persistence of 'social and legal ostracism' as the relevant aspect of group definition." (518) For example, Schmeiser discusses an Oregon state appellate decision holding that immutability is not about "the common, class-defining characteristics, but instead the fact that such characteristics are historically regarded as defining distinct, socially-recognized groups that have been the subject of adverse social or political stereotyping or prejudice." (519) Such a definition of immutability, however, has not had wide uptake. (520) Moreover, just as it is problematic to argue that human traits are immutable, so it is problematic to argue that biases are immutable. This line of argument may be self-defeating by suggesting that equality law is futile: if discriminatory assignments of identity and practices of segregation and subordination are immutable, the law cannot disrupt them.
To argue that employment discrimination law should forbid more forms of systemic bias is not to say an employer can never discriminate on these bases. Rather, to discriminate on the basis of a forbidden trait, an employer must demonstrate a business reason sufficient to meet a statutory standard or other exception. (521) Absent such a defense, moralizing judgments that an employee was to blame for her own deficiency should not excuse employer actions that perpetuate systemic problems of social inequality. Employment discrimination law seeks to balance employer prerogatives against the aim of eradicating invidious forms of bias. The law is justified in intervening in employer judgments with more force where those judgments cause social problems. (522) The focus on pervasive biases limits a systemic approach to those forms of bias that severely curtail opportunities, cut across social domains, or are self-perpetuating for those defined by certain traits. These forms of workplace unfairness create larger problems of inequality and make a stronger case for intervention in employer prerogatives.
It is true that more expansive antidiscrimination laws may trade off with the rigor of enforcement or the extent of remedies. (523) Some might argue that immutability should serve as a proxy for measuring whether a group deserves priority in terms of antidiscrimination protection. Yet, as this Article has argued, the moral judgments underlying considerations of immutability are problematic. Rather than asking impossible questions about the relative moral desert of various groups, equality politics might focus on the harms to society when the labor market subdivides workers into rigid groupings based on superficial, stigmatizing, or stereotypical categories. Systemic problems of inequality have a stronger claim on limited enforcement resources and remedies. Moreover, stratification based on "immutable" characteristics like race may be impossible to address without attention to widespread discrimination on the basis of "mutable" characteristics, such as ex-offender status.
By contrast to the universal approach, an incremental approach to expanding antidiscrimination law may be more politically feasible. American civil rights law has often expanded by establishing analogies to and overlaps with discrimination based on race, sex, disability, and increasingly, sexual orientation. (524) Analogies "can inspire empathy and understanding of harms previously unrecognized, and they may be desirable, if not necessary, in an adjudicative system based upon fidelity to precedent." (525) To suggest the power of careful analogical arguments is not to insist on the equivalence or ranking of oppressions. (526) Rather than arguing that the common thread is immutable traits, in any sense of the term "immutable," advocates might argue that biases on the basis of traits such as weight, pregnancy, and criminal records perpetuate systemic inequality, and that the arguments against protection are moralizing.
Looking at the social dynamics behind weight discrimination reveals a kinship with other forms of disability discrimination (527) and substantial overlap with sex discrimination. (528) Obesity is a stigmatized condition with systemic implications for employment opportunity, (529) yet it often falls outside the definition of disability due to immutability concerns. (530) One notable victory against weight discrimination is a 1993 First Circuit decision, Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals. (531) In that case, the court addressed immutability head-on and found it irrelevant. It rejected arguments that "morbid obesity" was not an impairment on account of being "caused, or at least exacerbated, by voluntary conduct." (532) This was because the statute
contains no language suggesting that its protection is linked to how an individual became impaired, or whether an individual contributed to his or her impairment. On the contrary, the Act indisputably applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, cancer resulting from cigarette smoking, heart disease resulting from excesses of various types, and the like. (533)
Rather than appealing to an alternate concept of immutability as a protected realm of liberty, the court highlighted the hypocrisy of treating weight differently than other conditions brought on by voluntary conduct. It instead directly confronted the social stigma surrounding weight, ending with disapproval for "a society that all too often confuses 'slim' with 'beautiful' or 'good.'" (534) The European Court of Justice has addressed weight discrimination in a similar manner. (535)
Likewise, failure to accommodate pregnancy and related conditions has systemic effects on the employment opportunities of women. (536) "[T]he maternal wall--the barriers to employment equality faced by mothers--begins with pregnancy." (537) Although the time during which a worker is pregnant is a relatively short period in the span of her career, the effects of pregnancy discrimination have a long-lasting impact. (538) This form of discrimination is self-perpetuating: employers discriminate based on the stereotype that women will be less devoted to their jobs due to family responsibilities, resulting in fewer employment opportunities for women and creating incentives for women to devote themselves to family responsibilities rather than paid work. (539)
With respect to pregnancy, arguments based on the intersections between reproduction and sex equality, rather than any sort of immutability, have had some success in courts. In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, Inc., the Supreme Court struck down as unlawful sex discrimination an employer's "fetal-protection policy" that forbade fertile women, but not fertile men, from working in certain jobs involving hazardous lead exposure. (540) What doomed the company's policy was its distinction between men and women, not its distinction on the basis of "fertility alone." (541) Unlike rights to reproductive privacy or liberty, the interest in sex equality was strong enough to override employer arguments that discrimination was necessary to avoid the risk of costly tort liability. (542)
Rather than allowing immutability arguments to remain submerged in sex discrimination contexts, courts might directly address them. In one district court case, Erickson v. Bartell Drug Co., an employer argued expressly that contraceptives are "voluntary" and "not truly a 'healthcare issue.'" (543) The district court called this immutability point out as "[a]n underlying theme" of the employer's argument and rejected it, reasoning that "the availability of affordable and effective contraceptives is of great importance to the health of women and children because it can help to prevent a litany of physical, emotional, economic, and social consequences." (544)
Likewise, with respect to criminal records, a focus on the harshness of immutability arguments, the racially disparate impact of screening practices, and the systemic effects of those practices has been persuasive with lawmakers. In analyzing the reasons that state legislatures enacted ban-the-box legislation, Fishkin describes how advocates directly confronted arguments regarding personal responsibility, exposing how these arguments are harsh and stigmatizing. (545) For example, Philadelphia Mayor Michael Nutter emphasized that "people who 'have paid their debt to society' deserve 'an opportunity to work to provide for their families and should not be discriminated against before they even have a first interview.'" (546) Immutability concerns clash with the goal of
open[ing] up a wider range of life paths and opportunities not only to those who demonstrate particular merit, desert, or promise, but to everyone--including those who have done poorly and those who did not manage to do as much as one would hope with the opportunities that were available to them. (547)
Fishkin also concluded that the disparate impact of criminal background checks on racial minorities played an integral role, by engaging anti-racist activists and organizations such as the NAACP to work for reforms. (548) When the question is the moral desert or freedom of ex-offenders as a class, it is hard to make the case for imposing the additional costs of individualized assessments on employers. The case is much stronger if the problem is envisioned as systemic inequality: a potential future in which all employers automatically exclude every ex-offender, creating a large, permanent underclass of individuals with criminal records, disproportionately people of color, unable to find any employment. (549)
The new immutability has been useful for courts seeking to overcome doctrinal hurdles to protection against sexual orientation discrimination. But analysis of its potential applications to employment discrimination contexts reveals that the revised immutability is deeply flawed as a way of rethinking equality law. The new immutability is focused on determining whether individuals have made choices that ought to be protected aspects of their "personhood," rather than asking how workplace policies limit equal opportunity by perpetuating systemic biases. Such biases may include the ideas that thin is always good, criminals are always bad, and pregnancy is always special. The promise of employment discrimination law is its ability to disrupt the stereotypes, stigmatizing practices, and superficial judgments that contribute to systems of inequality. This exercise will ultimately require more empathy and understanding, not revisions of the theory of immutability.
Associate Professor and Vance Opperman Research Scholar, University of Minnesota Law School. I am grateful to Bradley Areheart, Stephen Befort, Ann Burkhart, June Carbone, Mary Anne Case, Carol Chomsky, Antony Duff, Elizabeth Emens, Allan Erbsen, Joseph Fishkin, Michele Goodwin, Jill Hasday, Kristin Hickman, Claire Hill, Neha Jain, Erin Keyes, Heidi Kitrosser, Bert Kritzer, Nancy Levit, Brett McDonnell, William McGeveran, Isabel Medina, Stephen Meili, Amy Monahan, Perry Moriearty, Rebecca Morrow, JaneAnne Murray, David Noll, Shu-Yi Oei, Hari Osofsky, Stephen Rich, Christopher Roberts, Jessica Roberts, Veronica Root, Vicki Schultz, Daniel Schwarcz, Francis Shen, and participants at workshops at the University of Minnesota Law School, Loyola University New Orleans College of Law, the Vulnerability and the Human Condition Initiative, the Colloquium on Scholarship in Employment and Labor Law, and the Law and Society Annual Meeting for helpful feedback on previous drafts. My thanks to Cresston Gackle, Soren Lagaard, Inga Nelson, Katharine Saphner, Leah Tabbert, and the University of Minnesota Law Library for superb research assistance.
(1.) Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 Yale L.J. 485, 504 (1998).
(2.) In Obergefell v. Hodges, the Supreme Court observed that "[o]nly in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable." 135 S. Ct. 2584, 2596 (2015) (emphasis added) (citing Brief for American Psychological Ass'n et al. as Amici Curiae in Support of Petitioners at 7-17, Obergefell, 135 S. Ct. 2584 (No. 14-556), 2015 WL 1004713 [hereinafter APA Brief]). The APA Brief did not argue that sexual orientation is never chosen, nor did it argue that sexual orientation cannot be changed. Rather, it argued that "[m]ost gay men and lesbians do not experience their sexual orientation as a voluntary choice," and treatments aimed at changing sexual orientation "are unlikely to succeed." Brief for American Psychological Ass'n et al. as Amici Curiae in Support of Petitioners at 8-9, Obergefell, 135 S. Ct. 2584 (No. 14-556), 2015 WL 1004713 [hereinafter APA Brief]. The brief explained that sexual orientation "defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity." Id. at 10. The Court did not clarify precisely what it meant by the term "immutable," nor did it state what role the immutability of sexual orientation might have played in its holding that the Constitution requires states to license and recognize same-sex marriages.
(3.) Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 990 (S.D. Ohio 2013), rev'd sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev'd sub nom. Obergefell, 135 S. Ct. 2584. Many federal courts have adopted this new definition of immutability. See Latta v. Otter, 771 F.3d 456, 464 n.4 (9th Cir. 2014) ("We have recognized that '[s]exual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them.'" (quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183 (2006))); Baskin v. Bogan, 766 F.3d 648, 655 (7th Cir. 2014) (describing the immutability inquiry as looking for "some immutable or at least tenacious characteristic ... (biological, such as skin color, or a deep psychological commitment, as religious belief often is ... )"); Whitewood v. Wolf, 992 F. Supp. 2d 410, 429 (M.D. Pa. 2014) (holding that sexual orientation is "so fundamental to one's identity that a person should not be required to abandon [it]" (quoting Hernandez-Montiel, 225 F.3d at 1093)); Love v. Beshear, 989 F. Supp. 2d 536, 546 (W.D. Ky. 2014) ("As to immutability, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person's identity that it would be inappropriate to require her to change it to avoid discrimination."); Wolf v. Walker, 986 F. Supp. 2d 982, 1013 (W.D. Wis. 2014) ("[R]egardless whether sexual orientation is 'immutable,' it is 'fundamental to a person's identity,' which is sufficient to meet this factor." (citation omitted)); De Leon v. Perry, 975 F. Supp. 2d 632, 651 (W.D. Tex. 2014), affd sub nom. De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015) ("[S]exual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual-even if one could make a choice."); Bassett v. Snyder, 951 F. Supp. 2d 939, 960 (E.D. Mich. 2013) ("Even if sexual orientation were not immutable, sexual orientation is an integral part of personal identity."); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012) ("[A] person's sexual orientation is so fundamental to one's identity that a person should not be required to abandon it.").
The Supreme Courts of California, Connecticut, Iowa, and New Mexico have also adopted this new definition for purposes of holding that sexual orientation is a suspect classification under their respective state constitutions. In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) ("Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment."); Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 426 (Conn. 2008) ("[G]ay persons, because they are characterized by a 'central, defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individual's sense of self,' are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic." (citation omitted) (quoting Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd on other grounds, 976 F.2d 623 (10th Cir. 1992))); Varnum v. Brien, 763 N.W.2d 862, 886-89 (Iowa 2009) ("[W]e agree with those courts that have held the immutability 'prong of the suspectness inquiry surely is satisfied when ... the identifying trait is so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change [it].'" (quoting Kerrigan, 957 A.2d at 438)); Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013) ("This [immutability] requirement cannot mean that the individual must be completely unable to change the characteristic. Instead, the question is whether the characteristic is so integral to the individual's identity that, even if he or she could change it, would it be inappropriate to require him or her to do so in order to avoid discrimination?" (citations omitted)).
(4.) Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1988) (Norris, J., concurring).
(5.) See, e.g., Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & MARY L. REV. 1483, 1531-37 (2011) (arguing that the new immutability requires protection against discrimination based on appearance, parental status, marital status, and political affiliation); Anna Kirkland, Victorious Transsexuals in the Courtroom: A Challenge for Feminist Legal Theory, 28 LAW & SOC. INQUIRY 1, 31 (2003) (lauding the new immutability for its potential to expand protection to transgender identity); f Ann E. Tweedy, Polyamory as a Sexual Orientation, 79 U. CIN. L. REV. 1461, 1482-83 (2011) (discussing polyamory in terms of whether it is "integral to an individual's personal identity").
(6.) "New" is somewhat of a misnomer, as the theory now being advanced in many same-sex marriage cases was identified by legal scholars as early as 1981. See infra note 111 and accompanying text. Although the theory is not of recent vintage, its rise to popularity in equal protection case law is a recent phenomenon.
(7.) See, e.g., Tiffany C. Graham, The Shifting Doctrinal Face of Immutability, 19 Va. J. SOC. POL'Y & L. 169, 173 (2011) (approving of the new immutability for "mov[ing] toward an autonomy-based model ... that is premised on a respect for human dignity, which protects critical constitutive aspects of personhood, and which allows courts to offer heightened scrutiny protection to groups whose public identities are often not obvious"); Zachary A. Kramer, The New Sex Discrimination, 63 DUKE L.J. 891, 949 (2014) (arguing that "[m]aybe we need a softer definition of immutability" to address discrimination on the basis of sex, transgender status, sexual orientation, and religion); Joseph Landau, "Soft Immutability" and "Imputed Gay Identity": Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law, 32 FORDHAM URB. L.J. 237, 263 (2005) (arguing that "the soft immutability standard suggests great promise, and serves as a lodestar for LGBT litigants in other statutory and constitutional contexts"); Susan R. Schmeiser, Changing the Immutable, 41 CONN. L. REV. 1495, 1505 (2009) (applauding the new immutability, as formulated by the Connecticut Supreme Court, for "provid[ing] a means of graceful exit from the immutability morass in which equal protection analysis has become mired"); cf. Michael A. Helfand, The Usual Suspect Classifications: Criminals, Aliens and the Future of Same-Sex Marriage, 12 U. PA. J. CONST. L. 1, 11 (2009) (arguing in favor of the new immutability for purposes of asylum law, while endorsing variants of the old for purposes of equal protection and Title VII); Anthony R. Enriquez, Note, Assuming Responsibility for Who You Are: The Right To Choose "Immutable" Identity Characteristics, 88 N.Y.U. L. REV. 373, 373 (2013) (arguing that the new immutability "resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and ... harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility").
(8.) Although scholars have not critically considered the latest wave of cases on the new immutability, see supra note 3 and accompanying text, Janet Halley was an early critic of the doctrine, referring to it as "personhood" immutability and arguing that it essentialized sexual orientation identity. Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503, 519-21 (1994). This Article builds on Halley's points, see infra Part II.B, and identifies additional normative and strategic objections to the theory.
While "academic critiques of the immutability doctrine fill volumes," those critiques are primarily directed at the old version of immutability, which protected only traits a person could not change. See Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1418-19 (2014) (defending the old immutability). These critiques generally did not assess the revised version of immutability advanced in recent same-sex marriage cases. See supra note 3 and accompanying text. But see Edward Stein, Immutability and Innateness Arguments About Lesbian, Gay, and Bisexual Rights, 89 CHI.-KENT L. REV. 597, 633-35 (2014) (critiquing the old immutability and arguing that the new version is also problematic because it "is just not immutability in the standard sense of the term"). Moreover, prior work has been directed at advancing protection for "mutable traits commonly associated with race or sex," such as "racially identified hairstyles." See Ford, supra, at 1418. This Article looks at other frontiers of antidiscrimination protection that have generated recent legal controversies: weight, pregnancy, and criminal records.
A few scholars who applaud the new immutability have noted its limitations. See, e.g., Landau, supra note 7, at 263 (recognizing that "[s]ome scholars might object that a soft immutability standard fails to adequately protect performative characteristics and that the only way to truly protect all transgender individuals is to jettison immutability altogether"); Enriquez, supra note 7, at 399 n.110 (noting there is a need for caution "when relying on such potentially subjective criteria as a court's conception of what is or is not fundamental to an individual's sense of self').
(9.) See, e.g., Elizabeth F. Emens, Compulsory Sexuality, 66 Stan. L. Rev. 303, 377 tbl.1 (2014) (providing a "[d]escriptive [m]odel" listing eight criteria commonly associated with antidiscrimination protection, including, as the first factor, "[i]dentity beyond the individual's control or thought too deeply rooted to ask people to alter").
(10.) As a general matter, concepts from equal protection contexts tend to migrate to the employment discrimination arena. See infra notes 151-153 and accompanying text.
(11.) See, e.g., Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L.J. 1, 4-5 (2000) (discussing the importance of "the workplace" as "a uniquely important site within a diverse democratic society that aspires to achieve integration and equality among the citizens but that recognizes limitations on the proper scope of regulation"); Vicki Schultz, Life's Work, 100 Colum. L. Rev. 1881, 1884 (2000) ("[T]he prospect of who we become as a society, and as individuals, is shaped profoundly by the laws that create and control the institutions that govern our experiences as workers.").
(12.) Federal employment discrimination law protects a wide array of traits from discrimination. See 8 U.S.C. [section] 1324b(a) (2012) (certain immigration statuses); 29 U.S.C. [section] 158(a)(3) (2012) (union affiliation); 29 U.S.C. [section] 623 (2012) (age); 38 U.S.C. [section] 4311(a) (2012) (military service); 42 U.S.C. [section] 2000e(k) (2012) (pregnancy); 42 U.S.C. [section] 2000e-2(a) (2012) (race, color, religion, sex, and national origin); 42 U.S.C. [section] 2000ff-1 (2012) (genetic information); 42 U.S.C. [section] 12112(a) (2012) (disability). State and local laws often cover even more traits. See, e.g., D.C. Code [section] 2-1401.01 (2012) (personal appearance, familial status, family responsibilities, matriculation, political affiliation, source of income, and place of residence or business); Ky. Rev. Stat. Ann. [section] 344.040 (West 2015) (smokers); N.Y. Exec. Law [section] 291 (McKinney 2015) (sexual orientation and marital status). By contrast, the Supreme Court has long been reticent to extend any level of heightened scrutiny to classes other than illegitimacy, race, alienage, national origin, and gender, turning its focus instead to whether legislation is "rationally related to a legitimate governmental purpose." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).
(13.) See Sandi Farrell, Toward Getting Beyond the Blame Game: A Critique of the Ideology of Voluntarism in Title VII-Jurisprudence, 92 Ky. L.J. 483, 515 (2004) (explaining that, although the Supreme Court may be "retiring the immutability criterion" in equal protection cases, "[i]t is clear ... from reading Title VII decisions ... that the notion of immutability remains a persuasive ideological framework for many courts in the employment discrimination context").
(14.) See infra notes 42-46 and accompanying text.
(15.) See infra note 149 and accompanying text.
(16.) See Hoffman, supra note 5, at 1537 ("Immutability is the common thread that runs through the fabric of the employment discrimination statutes."). Courts have on occasion employed a test that resembles the new version of immutability in interpreting employment discrimination statutes. See infra note 148 and accompanying text.
(17.) See, e.g., Sibilla v. Follett Corp., No. CV 1o-1457(AKT), 2012 WL 1077655, at *9 (E.D.N.Y. Mar. 30, 2012) (holding that, despite recent revisions to the Americans with Disabilities Act to make it easier for a plaintiff to prove she is "disabled," obesity is not a disability unless the plaintiff can prove her obesity was the result of a physiological disorder).
(18.) See, e.g., Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354-55 (2015) (addressing whether an employer must accommodate pregnancy-related disabilities if it accommodates a subset of other, non-pregnancy related impairments).
(19.) See, e.g., U.S. EQUAL EMP'T. OPPORTUNITY COMM'N, ENFORCEMENT GUIDANCE NO. 915.002, CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, at 1 (2012) [hereinafter EEOC ARREST AND CONVICTION RECORDS GUIDANCE], http://www.eeoc.gov/laws/guidance/upload/arrest _conviction.pdf [http://perma.cc/557L-N5L7] (advising that the use of arrest and conviction records to screen out job applicants may be illegal discrimination).
(20.) With respect to obesity, the Americans with Disabilities Act of 1990 forbids an employer from discriminating against someone regarded as having a physical impairment that is not transitory and minor. See infra notes 293-300 and accompanying text. The Pregnancy Discrimination Act of 1978 requires employers to accommodate pregnant workers to the same extent that they do nonpregnant workers who are similarly unable to work. See infra note 344 and accompanying text. Blanket exclusions of job applicants with criminal records may violate Title VII of the Civil Rights Act of 1964, which forbids employment practices that have a disparate impact on a minority group. See infra notes 425-431 and accompanying text.
(21.) See infra notes 300-311, 339-382, 446-449 and accompanying text.
(22.) See infra notes 50-71 and accompanying text.
(23.) To be sure, immutability may not be a necessary factor in equal protection law. See infra text accompanying note 55. But for immutability to have any force as a factor, it must in the very least be true that we think discrimination is more likely to be legitimate to the extent that an individual bears more responsibility for a trait. See infra notes 79-82 and accompanying text.
(24.) See, e.g., Jane Korn, Too Fat, 17 VA. J. SOC. POL'Y & L. 209, 211 (2010) (positing that "one of the reasons obesity is not considered a disability is because we blame the obese person for being fat. We see fat people as responsible for their physical condition and, therefore, assume that their obesity is voluntary.").
(25.) See, e.g., Deborah Dinner, The Costs of Reproduction: History and the Legal Construction of Sex Equality, 46 HARV. C.R.-C.L. L. REV. 415, 417-18 (2011).
(26.) See, e.g., Kimani Paul-Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age, 100 VA. L. REV. 893, 932 (2014).
(27.) The EEOC has not taken the position that employers may never consider applicants' criminal histories; rather, it has advised that blanket exclusions of applicants with criminal records may violate Title VII if not justified by a business necessity. See infra text accompanying notes 427-431.
(28.) See infra Part II.A.
(29.) See infra Part II.B.
(30.) See infra notes 322-325 and accompanying text.
(31.) See infra notes 202-208, 214 and accompanying text.
(32.) See infra Part II.C.
(33.) See infra notes 433, 458-460 and accompanying text.
(34.) See supra note 3 and accompanying text.
(35.) See infra Part II.D.
(36.) See infra notes 332-335 and accompanying text.
(37.) See infra Part II.E.
(38.) See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014); infra Part II.F.
(39.) Cf. Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971) ("Far from disparaging job qualifications as such, [by enacting Title VII] Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.").
(40.) See infra Part IV.B.
(41.) See Ford, supra note 8, at 1418-19; f Yoshino, supra note 1, at 487 (criticizing the immutability factor for "subtly encouraging groups ... to assimilate by changing or hiding their defining characteristic").
(42.) The Court has analyzed legislative classifications based on three levels of scrutiny: rational basis, intermediate, and strict, ratcheting up its scrutiny of the state's motives as the suspectness of the classification increases. See Yoshino, supra note 1, at 487-89.
(43.) Lyng v. Castillo, 477 U.S. 635, 638 (1986).
(44.) Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (quoting San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)).
(46.) Id. (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)).
(47.) Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (Brennan, J., concurring in part and dissenting in part) ("[R]ace, like gender and illegitimacy, is an immutable characteristic which its possessors are powerless to escape or set aside." (citation omitted)); cf. Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (holding that conscientious objectors lacked an "immutable characteristic determined solely by the accident of birth" (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion))).
(48.) A trait may be impossible to change and yet chosen by an individual, such as criminal records. See Helfand, supra note 7, at 5-8 (discussing the confusion over three different definitions of immutable characteristics: traits that have not been chosen, traits that cannot be changed, and traits that no one should have to change).
(49.) Frontiero, 411 U.S. at 678-79.
(50.) Id. at 686 (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). Immutability alone was not sufficient. The plurality opinion goes on to say: "[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society." Id.
(52.) Weber, 406 U.S. at 165.
(53.) Id. at 175.
(54.) Cf. Donald Braman, Of Race and Immutability, 46 UCLA L. REV. 1375, 1381 (1999) (arguing that the Supreme Court understands race as "the product of social and political institutions" and that this "nonbiological understanding of race compels the conclusion that the immutability standard is not grounded in understandings of biological variation").
(55.) See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (treating alienage as a suspect classification, even though alienage may sometimes be changed through naturalization).
(56.) See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46 (1985) (refusing to treat the "class of the mentally retarded" as "quasi-suspect," on the ground that there is no "principled way" to distinguish this group from others with "immutable disabilities"); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-14 (1976) (denying suspect-class status to age, a trait generally thought to be outside an individual's control, in holding that a statute setting a mandatory retirement age of fifty for police officers survived rational basis review).
(57.) The Supreme Court has occasionally deviated from the ordinary standard of rational basis review to apply what scholars have called "rational basis 'with bite.'" See Kenji Yoshino, Why the Court Can Strike Down Marriage Restrictions Under Rational-Basis Review, 37 N.Y.U. Rev. L. & Soc. Change 331, 331-35 (2013) (contrasting cases that apply the ordinary standard of rational basis review with those said to apply rational basis "with bite").
(58.) Plyler v. Doe, 457 U.S. 202 (1982).
(59.) Id. at 220.
(60.) Id. at 216 n.14.
(61.) 473 U.S. at 435. The term "the mentally retarded" was used by the Supreme Court and reflected common usage at the time.
(62.) Id. at 442 n.10 (quoting JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 150 (1980) (alteration in original)). I note that Ely was a critic of the immutability factor. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 150 (1980).
(63.) Cleburne, 473 U.S. at 450.
(64.) Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972).
(65.) Id. at 175.
(66.) It is not used in the ontological sense of being the opposite of an essential characteristic. Cf. Herbert Spiegelberg, 'Accident of Birth': A Non-Utilitarian Motif in Mill's Philosophy, 22 J. Hist. Ideas 475, 476 (1961) (discussing John Stuart Mill's use of the concept).
(67.) See id. at 476-80. The phrase also appears in nineteenth-century literature. William Make-peace Thackeray's novel Vanity Fair tells the story of young William Dobbin, who was the victim of schoolyard taunting related to his father's lower-class occupation as a grocer. WILLIAM MAKEPEACE THACKERAY, VANITY FAIR 54 (John Carey ed., Penguin Classics 2003) (1848). But after Dobbin bested the school bully in a fight, "[i]t was voted low to sneer at Dobbin about this accident of birth." Id.
(68.) JOHN STUART MILL, THREE ESSAYS ON RELIGION 36 (Prometheus Books 1998) (1874).
(69.) See Elizabeth S. Anderson, What Is the Point of Equality?, 109 Ethics 287, 289 (1999) (coining the term "luck egalitarianism").
(70.) JOSEPH FISHKIN, BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY 37, 49-50 (2014) (arguing that luck egalitarianism would require policies that make everyone's developmental opportunities equal at every stage of life, including policies to redistribute the advantages certain children receive from having parents with more resources).
(71.) The allusion is to William Shakespeare. WILLIAM SHAKESPEARE, THE TRAGEDY OF JULIUS CAESAR act 1, sc. 2, at 41 (William Rosen & Barbara Rosen eds., Signet 1963) (1599) ("The fault, dear Brutus, is not in our stars / But in ourselves, that we are underlings."). Apart from egalitarian ideals, the immutability factor has been justified on political process grounds. See Yoshino, supra note 1, at 506-07. The political process argument is that immutable groups require special protection from the judiciary against disfavor by other branches of government, because immutable groups cannot change their stripes to achieve political influence. See id. at 507-08. I do not analyze political process theories here because this Article aims to intervene in debates about which forms of employment discrimination deserve scrutiny by legislatures, employers, and courts interpreting statutes, not the question of when judicial intervention in the political process is warranted.
(72.) See FISHKIN, supra note 70, at 59.
(73.) See id. at 48-55.
(74.) I. Glenn Cohen, Rationing Legal Services, 5 J. LEGAL ANALYSIS 221, 274 (2013); see also Samuel Scheffler, What Is Egalitarianism?, 31 Phil. & Pub. Aff. 5, 18 (2003) ("[I]n any ordinary sense of 'voluntary,' people's voluntary choices are routinely influenced by unchosen features of their personalities, temperaments, and the social contexts in which they find themselves.").
(75.) See, e.g., Mark D. Alicke, Culpable Control and the Psychology of Blame, 126 PSYCHOL. BULL. 556, 558 (2000) (discussing "blame validation" effects); Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1204 (1995) (summarizing research on biases in causal attribution); Dean Pettit & Joshua Knobe, The Pervasive Impact of Moral Judgment, 24 Mind & Language 586, 589 (2009) (concluding that "people's moral judgments are somehow influencing their intuitions as to whether or not an agent acts intentionally" (citations omitted)). More troublingly, psychologists have described a "tendency to blame victims for their misfortunes," as when participants in a study blamed a student they observed receiving electric shocks. Alicke, supra, at 566 (discussing Melvin J. Lerner & Carolyn H. Simmons, The Observer's Reaction to the "Innocent Victim": Compassion or Rejection?, 4 J. PERSONALITY & SOC. PSYCHOL. 203 (1966)). Alicke explains, "Victim blame serves, at least symbolically, to restore a sense of justice, whereas ascribing harm to impersonal environmental forces sustains the belief that bad things can happen randomly to blameless people." Id. at 566 (citing Camille B. Wortman, Causal Attributions and Personal Control, in 1 NEW DIRECTIONS IN ATTRIBUTION THEORY 23 (John H. Harvey et al. eds., 1976)).
(76.) Anderson, supra note 69, at 295.
(77.) See id. at 296. Luck egalitarians might qualify their arguments, admitting, for example, that "some outcomes are so awful that no one deserves to suffer them, not even the imprudent." Id. at 301. But this argument is not supported by the theory behind luck egalitarianism; it must be supported by some other moral theory. See id.
(78.) Id. at 311.
(79.) Ely, supra note 62, at 150.
(80.) See Yoshino, supra note 1, at 487 ("Under current equal protection doctrine, the question of whether a classification deserves heightened scrutiny precedes the question of whether the legislation is sufficiently related to its objective."). But see supra note 45 and accompanying text (discussing how a history of inaccurate stereotypes regarding a group's abilities is a factor in favor of suspect class status).
(81.) 42 U.S.C. [section] 2oooe-2(e)(1) (2012) ("[I]t shall not be an unlawful employment practice for an employer to hire and employ employees ... on the basis of [a protected trait other than race] in those certain instances where [that trait] is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business.... "); id. [section] 2000e-2(k)(1)(A)(i) (providing that an employer is liable for a policy that creates a disparate impact on the basis of a protected trait if the plaintiff demonstrates the disparate impact and the employer fails to demonstrate "that the challenged practice is job related for the position in question and consistent with business necessity").
(82.) Halley, supra note 8, at 508-09.
(83.) Anderson, supra note 69, at 310 (emphasis omitted).
(85.) Yoshino, supra note 1, at 490.
(86.) Id. at 506.
(87.) Id. at 505.
(88.) The question is more often examined as an expressive or moral one. Consider Weber, which held it was "ineffectual" to penalize illegitimate children for their parents' sins. Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175 (1972). Weber cites no evidence in support of this proposition, and common experience suggests many potential parents would just as likely be deterred by the threat of harm to their children as by the threat of harm to themselves. Likely, the court did not investigate this empirical question, because whatever the outcome, it was "unjust" for the law to express its "condemnation of irresponsible liaisons beyond the bonds of marriage ... on the head of an infant." Id.
(89.) See MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 287-96 (2004) (discussing how discrimination often imposes shame).
(90.) See, e.g., Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. CHI. L. REV. 733, 754 (1998) ("The most one can say for now is that shaming penalties can deter some offenders some of the time, even if they don't deter optimally." (footnotes omitted)); Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075, 2089 (2006) (discussing controversy over his empirical claim that in criminal law contexts, "shame would, or at least might, work").
(91.) Anderson, supra note 69, at 311.
(92.) See, e.g., Spencer Rand, Creating My Client's Image: Is Case Theory Value Neutral in Public Benefits Cases?, 28 WASH. U. J.L. & POL'Y 69, 77 (2008) ("In Supplemental Security Income ('SSI') and Social Security Disability cases, clients must testify to their own failings and their lack of hope of ever overcoming those failings to show that they are not just trying to beat the system.").
(93.) See Cohen, supra note 74, at 274.
(94.) Kahan, supra note 90, at 2086-88.
(95.) See id. (discussing how corporal punishment, as a "shaming" penalty, was historically a way "that sovereigns disciplined subjects, masters disciplined slaves, parents disciplined children, and husbands disciplined wives," with members of upper classes often exempt).
(96.) NUSSBAUM, supra note 89, at 207.
(97.) Id. at 233-34 (discussing James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055 (1998)).
(98.) See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 2-3 (1963) (arguing that a stigmatized person is "reduced in our minds from a whole and usual person to a tainted, discounted one").
(99.) Id. at 5.
(100.) Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263, 286 (1995).
(101.) Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245, 249 (1983).
(102.) GOFFMAN, supra note 98, at 7 ("Shame becomes a central possibility, arising from the individual's perception of one of his own attributes as being a defiling thing to possess, and one he can readily see himself as not possessing.").
(103.) See, e.g., 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 128-29 (2014) (reading the distinctive wrong of school segregation in Brown v. Board of Education to be institutionalized humiliation); see also Nussbaum, supra note 89, at 174-76 (arguing that "law should protect the equal dignity of all citizens, both by devising ways in which those already stigmatized as different can enjoy lives of greater dignity and by refusing to make law a partner to the social infliction of shame"); Deborah Hellman, Equal Protection in the Key of Respect, 123 YALE L.J. 3036, 3046-47 (2014) (arguing that discrimination is wrong when it is an exercise of power that "demeans" a person or people by "express[ing] " that they "are less worthy of equal concern or respect").
(104.) See, e.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
(105.) See Halley, supra note 8, at 509-10; Yoshino, supra note 1, at 490-91, 490 n.14.
(106.) See Yoshino, supra note 1, at 490 & n.15; supra note 62 and accompanying text.
(107.) See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312-14 (1976); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24-28 (1973).
(108.) But see Vieth v. Jubelirer, 541 U.S. 267, 287 (2004) (plurality opinion) (describing "[p]olitical affiliation" as mutable); Nguyen v. INS, 533 U.S. 53, 83 (2001) (O'Connor, J., dissenting) (citing precedent holding that sex classifications require heightened scrutiny because sex is an immutable attribute).
(109.) See supra note 2 and accompanying text. Obergefell rested on the interaction of due process and equal protection principles; it did not hold that sexual orientation classifications are generally suspect and it did not specify the role that sexual orientation's immutability played, if any, in its analysis. Obergefell v. Hodges, 135 S. Ct. 2584, 2602-03 (2015).
(110.) See supra note 3 and accompanying text.
(111.) Douglas Laycock, Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEX. L. REV. 343, 383 (1981) (reviewing Ely, supra note 62) (arguing that although they might be changed, sex is a matter of personal autonomy and religion a matter of free exercise).
(112.) 875 F.2d 699, 711 (9th Cir. 1989) (en banc) (Norris, J., concurring). In Watkins, the majority held that the Army was equitably estopped from denying reenlistment to Perry Watkins, because Watkins had always been candid about his sexuality and the Army had allowed him to reenlist in the past. Id. at 709-11 (majority opinion). Although the majority did not reach the issue, Judge Norris would have held that sexual orientation was a suspect classification. Id. at 728 (Norris, J., concurring).
(113.) See In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985). Immutability plays an important role in asylum law, as an express criterion for determining what characteristics qualify as "membership in a particular social group." 8 U.S.C. [section] 1101(a)(42)(A) (2012).
(114.) Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415, 473 (2012); Emens, supra note 9, at 377 & n.440; Schmeiser, supra note 7, at 1495. This Article uses the term "revised immutability" to refer to the synthesis of the old and new concepts into a test that prohibits discrimination on either basis. See infra Part I.B.
(115.) See Halley, supra note 8, at 519; Yoshino, supra note 1, at 493-94.
(116.) See Landau, supra note 7; Stein, supra note 8, at 633.
(117.) Watkins, 875 F.2d at 726 (Norris, J., concurring).
(121.) Id.; see also Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (relying on psychological, psychiatric, social, and behavioral sciences in an asylum case as to the fixed nature of sexual orientation and trauma caused by conversion efforts), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), vacated, 547 U.S. 183 (2006).
(122.) Watkins, 875 F.2d at 726 (Norris, J., concurring).
(123.) Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd, 976 F.2d 623 (10th Cir. 1992).
(124.) Watkins, 875 F.2d at 726 (Norris, J., concurring). Not every court would agree with this statement. Some opinions suggest that the difficulty of change is dispositive. See infra notes 168-170 and accompanying text.
(125.) Watkins, 875 F.2d at 726 (Norris, J., concurring). This example came from Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1073 n.52 (1980). The opinion also quoted a Harvard Law Review Note arguing "that the ability to change a trait is not as important as whether the trait is a 'determinative feature of personality.'" Watkins, 875 F.2d at 726 (Norris, J., concurring) (quoting Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV. L. REV. 1285,
(126.) Watkins, 875 F.2d at 724 (Norris, J., concurring).
(127.) See id. at 716-17.
(128.) Bowers v. Hardwick, 478 U.S. 186, 189 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
(129.) See Halley, supra note 8, at 520 (explaining why "personhood arguments do not establish a rationale for delegitimating popular decisions to sanction [i.e., punish] voluntary conduct").
(130.) Bowers, 478 U.S. at 204-05 (Blackmun, J., dissenting). Justice Blackmun anchored this objection to anti-sodomy statutes in the right to privacy alone, not any considerations related to immutability. Id.
(131.) Lawrence, 539 U.S. 558.
(132.) 957 A.2d 407, 436-39 (Conn. 2008).
(133.) Id. at 438 (quoting Lawrence, 539 U.S. at 576-77).
(134.) Id. at 437 (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973)).
(135.) Id. at 438.
(137.) Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015).
(138.) Id. (citing APA Brief, supra note 2, at 7-17).
(139.) The APA Brief did not even use the word "immutable." It argued instead that sexual orientation "[i]s [g]enerally [n]ot chosen, and [i]s [h]ighly [r]esistant to [c]hange," APA Brief, supra note 2, at 7, citing the results of one survey showing "only 5% of gay men and 16% of lesbians reported feeling they had 'a fair amount' or 'a great deal' of choice about their sexual orientation," id. at 8, and discussing the scientific consensus that "sexual orientation change efforts are unlikely to succeed and can be harmful," id. at 9.
(140.) Id. at 10.
(141.) In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) (emphasis added) (defining immutability for asylum law generally).
(142.) See supra notes 72-103 and accompanying text.
(143.) U.S. CONST. amend. XIV [section] 1 ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws."); Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (applying a similar equal protection guarantee to the federal government).
(144.) See, e.g., 42 U.S.C. [section] 2000e(b) (2012) (defining "employers" for purposes of employment discrimination law).
(145.) Employment discrimination statutes might have a broader reach than the constitutional guarantee of equal protection because they are enacted by Congress, and the Court may be less concerned that it is overstepping its role when it carries out specific congressional commands. See Washington v. Davis, 426 U.S. 229, 248 (1976) (holding that Title VII's prohibition on disparate impact discrimination does not apply to the equal protection clause because "extension of the rule beyond those areas where it is already applicable by reason of statute ... should await legislative prescription").
(146.) See supra note 12 and accompanying text (contrasting the wide variety of traits protected by employment discrimination law with the Supreme Court's limited heightened scrutiny jurisprudence).
(147.) See, e.g., Lauren B. Edelman et al., Diversity Rhetoric and the Managerialization of Law, 106 Am. J. Soc. 1589, 1589 (2001) (discussing "the rise of diversity rhetoric in U.S. management" and its impact on law).
(148.) One area of Title VII law where the new immutability has been directly adopted is what some courts call the "sex-plus" theory of discrimination, which "allows plaintiffs to bring a Title VII claim for sex discrimination if they can demonstrate that the defendant discriminated against a subclass of women (or men) based on either (1) an immutable characteristic or (2) the exercise of a fundamental right." Arnett v. Aspin, 846 F. Supp. 1234, 1239 (E.D. Pa. 1994) (holding plaintiff could make out a case of sex discrimination under Title VII by demonstrating that her employer discriminated against older women). This particular doctrinal formulation grew out of the context of employer grooming policies that allowed women, but not men, to wear their hair long, policies courts saw not as impinging on equal opportunity, but as an employer's prerogative. See, e.g., Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (en banc). Thus, some courts cabined the sex-plus theory to characteristics deemed immutable or fundamental, such as parenthood. See, e.g., id. at 1089 (discussing Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971), in which the Supreme Court held that discrimination against mothers of pre-school-age children, but not fathers of pre-school-age children, violated Title VII). I note that Phillips did not find analysis of old or new immutability to be necessary to its holding.
(149.) See, e.g., Peter Brandon Bayer, Mutable Characteristics and the Definition of Discrimination Under Title VII, 20 U.C. DAVIS L. REV. 769, 771 (1987) (discussing the role of immutability arguments in Title VII cases allowing employers to forbid the use of the Spanish language at work, require that men have short hair, and mandate that women alter their appearances); Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision To Redeem Title VII, 76 TEX. L. REV. 317, 323 (1997) (arguing that immutability considerations resulted in interpretations of Title VII that fail to adequately prohibit discrimination based on language, dress, grooming, or religious practices); Farrell, supra note 13, at 491-99 (discussing how arguments about workers' voluntary preferences affect Title VII cases on how to explain statistical disparities with respect to female and minority workers, cases requiring that sexual harassment be "unwelcome," and cases refusing to extend protection to appearance-based discrimination, transgender identity, and sexual orientation); Helfand, supra note 7, at 30-34 (discussing the role of immutability arguments in canonical Title VII cases); Roberto J. Gonzalez, Note, Cultural Rights and the Immutability Requirement in Disparate Impact Doctrine, 55 Stan. L. Rev. 2195, 2217-27 (2003) (discussing how immutability arguments prevent courts from recognizing cultural rights in Title VII cases).
(150.) See, e.g., Willingham, 507 F.2d at 1092. I discuss examples of how immutability serves to limit employment discrimination law in the contexts of weight, pregnancy, and criminal records in Part III.
(151.) William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. Pa. L. REV. 1007, 1013 (1989); see also Bertrall L. Ross II, Against Constitutional Mainstreaming, 78 U. Chi. L. Rev. 1203, 1206 (2011) (discussing the practice of "constitutional mainstreaming" in which "the Court interprets an ambiguous statute in unforeseen contexts to accord with the evolving values that it has emphasized in its decisions interpreting the Constitution but in a manner that conflicts with the values reflected in subsequent legislative enactments"); cf. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 549 (1990) (arguing that "'constitutional' norms provide the background context that informs our interpretation of statutes and other sub-constitutional texts").
(152.) See, e.g., Cheryl I. Harris, Limiting Equality: The Divergence and Convergence of Title VII and Equal Protection, 2014 U. Chi. LEGAL F. 95, 97, 104-05 (2014) (discussing how the Supreme Court imported concepts from equal protection law to interpret Title VII in Ricci v. DeStefano, 557 U.S. 557, 582-84 (2009) and Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145 (1976)); Stephen M. Rich, One Law of Race?, 100 IOWA L. REV. 201, 204-05 (2014) (discussing how the Supreme Court has favored "convergence" in interpretation of the equal protection clause and employment discrimination statutes in the context of race discrimination).
(153.) Harris, supra note 152, at 124-43 (discussing the subtle impact of equal protection principles on Title VII, and vice versa, in the contexts of disparate impact law and affirmative action, despite textual differences). Harris argues that transference seems particularly likely when constitutional standards weaken antidiscrimination protections for historically disadvantaged groups. Id. at 98. This argument suggests that new ideas of immutability might be more likely to spread insofar as they limit, rather than extend, protection.
(154.) Consider the remarks of Senator Carl Levin (D-MI) in support of the Genetic Information Nondiscrimination Act (GINA): "We do not determine our own DNA. We are born with it. We cannot allow discrimination on the basis of such a fundamental aspect of life and one in which we had no choice." 154 Cong. Rec. S3372 (daily ed. Apr. 24, 2008) (statement of Sen. Levin); see also Jessica L. Roberts, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 Vand. L. Rev. 439, 478 (2010) (discussing examples of arguments from immutability in the legislative debate over GINA).
(155.) William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 422-23 (2001) (describing a dialectical dynamic between constitutional law and social movements seeking tolerance or acceptance of a despised identity).
(156.) See supra notes 5, 7 and accompanying text.
(157.) See supra note 9 and accompanying text.
(158.) Hoffman, supra note 5, at 1537-44.
(159.) Some might contest whether these characteristics are invariably or even predominantly accidents of birth. See, e.g., Elizabeth F. Emens, Against Nature, in NOMOS LII: EVOLUTION AND MORALITY 293, 309-12, 320-21 (James E. Fleming & Sanford Levinson eds., 2012) (describing conflicting views on the immutability of age, for example, that it is quintessentially immutable; that it is capable of reversal through exercise, diet, or plastic surgery; that it is "meaningless" or notional; and that it is a process too individualized to be susceptible to any generalization).
(160.) While it is beyond the scope of this Article to assess whether these categories are immutable in the old sense, the new one, or neither, I note these questions are subject to much disagreement. Like sexual orientation, whether transgender identity fits under the old immutability rubric is vigorously disputed. See, e.g., Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in Transgender Rights 3, 18 (Paisley Currah et al. eds., 2006) (discussing how transgender rights advocates often argue that "gender identity and often even expressions of gender identity" are "unchangeable, set from an early age"). Religion too may be considered ascribed at birth. See Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 726 n.5 (2010) (Alito, J., dissenting) (discussing discrimination against an individual because she was born into a particular religion or due to her ancestors' religion). Marital status is generally conceptualized as a choice, with exceptions when marriage is forced, prohibited, or not feasible. See Trina Jones, Single and Childfree! Reassessing Parental and Marital Status Discrimination, 46 Ariz. St. L.J. 1253, 1319 (2014) (observing that discrimination against the single and childless "seems to violate" the test of the new immutability). While parental status might, on occasion, be accidental, it is rarely thought to be a matter for which the parent is not responsible. Compare id. at 1317 ("[T]he decision not to parent is in most cases, excepting infertility, a matter over which an individual has some control given advances in contraception methods over the last forty years."), with Khiara M. Bridges, When Pregnancy Is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457, 483-84 (2013) (discussing unwanted pregnancies).
(161.) See Gonzalez, supra note 149, at 2196-99 (discussing scholarly responses to Rogers v. Am. Airlines, 527 F. Supp. 229 (S.D.N.Y. 1981)).
(162.) Many of these controversies pertain to whether gay rights issues should be framed as questions of equal protection (sex or sexual orientation discrimination) or substantive due process (privacy, liberty, autonomy, or other fundamental rights). This Article does not take a position on which frame might be more appropriate in the abstract. Rather, it is concerned with unique drawbacks to the way the revised immutability imports concepts from substantive due process law into the definition of protected identities for antidiscrimination purposes. See supra text accompanying notes 130-136 (discussing how the new immutability employs privacy, freedom, and autonomy norms in its definition of protected identities). Some of the objections discussed here may also apply to substantive due process arguments in general and not just those that rely on protected identities. Whether substantive due process arguments alone might still be worth pursuing depends on context and is beyond the scope of this Article.
(163.) Space limitations prevent exploration of how the revised immutability might apply across the many domains of equality law, including equal protection, asylum, education, housing, and public accommodations. However, the employment discrimination examples discussed in this Article suggest reasons to be critical of applications of the revised immutability to these contexts.
(164.) See supra notes 72-103 and accompanying text.
(165.) See supra note 75 and accompanying text (discussing psychological research on how implicit judgments drive attributions of blame); supra note 88 and accompanying text (discussing the confusion of empirical, expressive, and moral arguments by those who imagine discrimination could be a means of incentivizing behavior); supra note 97 and accompanying text (analogizing shaming practices to mob justice in which the public punishes transgressors without due process).
(166.) See supra text accompanying notes 76-103.
(167.) But see supra notes 124-136 and accompanying text (discussing cases identifying the key feature of a newly immutable trait as related to individual privacy, autonomy, or liberty interests in defining the self).
(168.) See, e.g., Baskin v. Bogan, 766 F.3d 648, 655 (7th Cir. 2014). Obergefell is not clear on whether the Supreme Court considers sexual orientation to be immutable because it is usually not experienced as a choice, because it is difficult to change, because it is fundamental to personality, or for some combination of these reasons. See supra note 2 and accompanying text.
(169.) Baskin, 766 F.3d at 655.
(170.) Varnum v. Brien, 763 N.W.2d 862, 893 (Iowa 2009) (quoting Dean v. District of Columbia, 653 A.2d 307, 346 (D.C. 1995) (Ferren, J., dissenting)). The Iowa Supreme Court adopted a definition of immutability as both a trait that is "highly resistant to change," and one that "forms a significant part of a person's identity." Id. (citing Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 438 (Conn. 2008)).
(171.) See id. at 892 (citing Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion), for the proposition that the purpose of the immutability requirement is to tie legal burdens to "individual responsibility").
(172.) Baskin, 766 F.3d at 655.
(173.) Varnum, 763 N.W.2d at 893.
(174.) Halley, supra note 8, at 519.
(175.) Cf. Schmeiser, supra note 7, at 1517 (arguing that this aspect of the Varnum decision is "unfortunate and unnecessary").
(176.) Or it may require that she demonstrate she has a condition, such as "gender identity disorder," and that to dress in ways associated with femininity would violate her deep psychological commitments to masculine identity. See, e.g., Currah, supra note 160, at 8-11.
(177.) Baskin, 766 F.3d at 657 (holding-based on survey data, evidence from psychotherapy, and various genetic, neuroendocrine, and evolutionary theories-that "there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice").
(178.) See Campaign for S. Equal. v. Bryant, 64 F. Supp. 3d 906, 939 (S.D. Miss. 2014) (following Baskin in holding that sexual orientation is immutable in that there is virtually no choice as to the characteristic).
(179.) See supra notes 124-136 and accompanying text.
(180.) Boucai, supra note 114, at 472.
(182.) Halley, supra note 8, at 520-21 ("Explaining why rules burdening conduct impinge on elements of life central to personhood would require not a psychiatric or psychological theory of sexuality but a political one."). By explaining this objection, I do not mean to imply that I agree that social policy should encourage heterosexuality. Rather, I mean to demonstrate that other arguments are doing the persuasive work.
(183.) Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015) (emphasis added).
(184.) Realizing this, the APA Brief cited in Obergefell combined the argument that sexual orientation is immutable with the argument that homosexuality is normal, all under the heading: "Sexual Orientation Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change." APA Brief, supra note 2, at 7-9. That section of the APA Brief emphasized that homosexuality "implies no impairment in judgment, stability, reliability, or general social or vocational capabilities," id. at 8 (citing AM. PSYCHIATRIC ASS'N, POSITION STATEMENT: HOMOSEXUALITY AND CIVIL RIGHTS (1973), reprinted in 131 American JOURNAL OF PSYCHIATRY 497 (1974)), and "pose[s] no inherent obstacle to leading a happy, healthy, and productive life," id.
(186.) The portion of the APA Brief cited by the Court also included a section with the heading: "Gay Men and Lesbians Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects." Id. at 11.
(187.) Obergefell, 135 S. Ct. at 2594 ("Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect--and need--for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.").
(188.) See Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1400 (2004) (arguing that Lawrence v. Texas "relies on a narrow version of liberty that is both geographized and domesticated--not a robust conception of sexual freedom or liberty").
(189.) Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 437-38 (Conn. 2008) (discussing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973) and Lawrence v. Texas, 539 U.S. 558, 576-77 (2003)).
(190.) Slaton, 413 U.S. at 52.
(191.) The full quotation from Slaton reads:
The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.
Id. at 63.
(192.) Id. at 57.
(193.) Franke, supra note 188, at 1408-09 (quoting Lawrence, 539 U.S. at 562, 567).
(194.) Franke, id. at 1412, offers the example of State v. Limon, in which a Kansas appellate court upheld the conviction of a male eighteen-year-old for "criminal sodomy" with a male fourteen-year-old under a statute that "criminalized heterosexual sodomy less severely than homosexual sodomy." 83 P.3d 229, 232 (Kan. Ct. App. 2004), rev'd, 122 P.3d 22 (Kan. 2005). The court reasoned that due process protection for "private consensual sexual practices" under Lawrence did not extend to minors. Id. at 234. Its decision was reversed on equal protection grounds. Limon, 122 P.3d at 24; see also Anna K. Christensen, Comment, Equality with Exceptions? Recovering Lawrence's Central Holding, 102 Calif. L. Rev. 1337, 1341-42 (2014) (discussing enforcement of rules remaining on the books post-Lawrence that penalize same-sex or nonprocreative sexual conduct more harshly than other forms of sexual conduct).
(195.) See, e.g., Wolf v. Walker, 986 F. Supp. 2d 982, 1013 (W.D. Wis. 2014), affd sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) ("[R]egardless whether sexual orientation is immutable, it is fundamental to a person's identity, which is sufficient to meet this factor." (citation omitted)); De Leon v. Perry, 975 F. Supp. 2d 632, 651 (W.D. Tex. 2014), affd sub nom. De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015) ("[S]exual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual-even if one could make a choice."); supra notes 3-4 and accompanying text.
(196.) Love v. Beshear, 989 F. Supp. 2d 536, 546 (W.D. Ky. 2014).
(197.) Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 990 (S.D. Ohio 2013), rev'd sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev'd sub nom. Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015).
(198.) Latta v. Otter, 771 F.3d 456, 464 n.4 (9th Cir. 2014) (quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005), vacated, 547 U.S. 183 (2006)).
(199.) Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd, 976 F.2d 623 (10th Cir. 1992).
(200.) 478 U.S. 186, 202 n.2 (1986) (Blackmun, J., dissenting).
(201.) Janet E. Halley, The Construction of Heterosexuality, in FEAR OF A QUEER PLANET: QUEER POLITICS AND SOCIAL THEORY 82, 91 (Michael Warner ed., 1993).
(202.) See Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 797 (1989) ("The concept of personal identity--that sense of a unitary, atomic self that we all tend to consider ourselves to 'have'--is complex and difficult. It has an almost theological or metaphysical aspect, as if one's 'identity' were a kind of hypostatic quantity underlying the multiplicity of his vastly different relations in the world and the mutability of his nature over time.").
(203.) Id. at 770-74.
(204.) Id. at 771-74 (discussing 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (1980)).
(205.) Id. at 777 (citing 1 Michel Foucault, The History of Sexuality: An Introduction (1980)); Anne B. Goldstein, Comment, History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073, 1088 (1988)).
(206.) Halley, supra note 8, at 520.
(207.) Sonia K. Katyal, Sexuality and Sovereignty: The Global Limits and Possibilities fLawrence, 14 Wm. & Mary Bill Rts. J. 1429, 1442 (2006).
(208.) Id. at 1445-48; see also Sonia Katyal, Exporting Identity, 14 Yale J.L. & Feminism 97, 99-100 (2002) ("[S]ome cultures view homosexuality as an activity, not an identity; others view it as a necessary phase in a quest for full-fledged adulthood; and still others equate it with transgenderism." (citations omitted)).
(209.) See Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (en banc) (Norris, J., concurring); Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991).
(210.) Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285, 1303 (1985).
(211.) Id. at 1304-05.
(212.) For the strong version of the argument that public views shaped legal decisions on gay rights, see Michael J. Klarman, Windsor and Brown: Marriage Equality and Racial Equality, 127 Harv. L. Rev. 127, 132-33 (2013), which states: "With regard to Windsor, the critical development has been the coming-out phenomenon, which over a period of decades has led to extraordinary changes in attitudes and practices regarding sexual orientation." For the weaker one, see Reva B. Siegel, Foreword: Equality Divided, 127 Harv. L. Rev. 1, 76-77 (2013), which states: "Evolving public opinion enabled this Term's marriage decisions, but conflict over law importantly contributed to the public's changing views."
(213.) See, e.g., Lauren Sudeall Lucas, Undoing Race? Reconciling Multiracial Identity with Equal Protection, 102 Calif. L. Rev. 1243, 1263-67 (2014) (discussing research on the multiplicity and fluidity of multiracial identity).
(214.) Id. at 1269 (discussing research on the lack of salience of racial identity for many multiracial individuals).
(215.) 135 Cong. Rec. 19,870 (1989) (statement of Sen. Helms).
(216.) Id. at 19,867 (statement of Sen. Kennedy (quoting statement by Louis Sullivan, Secretary of Health and Human Services)).
(217.) Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (discussing evidence of congressional intent that the ADA cover asymptomatic HIV); Ruth Colker, The ADA's Journey Through Congress, 39 Wake Forest L. Rev. 1, 23 (2004) (arguing that the legislative history demonstrates "a unanimous understanding" among those who voted for the ADA "that Congress intended HIV to be covered").
(218.) See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 11-16 (2000) (discussing the "simple but powerful" logic of "American antidiscrimination law" that "renders forbidden characteristics invisible" and requires that employers ask only about an individual's ability to perform a job).
(219.) See, e.g., Samuel R. Bagenstos, Subordination, Stigma, and "Disability," 86 Va. L. Rev. 397, 445 (2000) (discussing an approach to determining what characteristics are covered by the ADA that asks what "actual, past, and perceived impairments ... subject people to systematic disadvantages in society" and are "stigmatized"); Karst, supra note 101, at 248 (arguing that the equal protection clause protects a principle of "equal citizenship" and "the chief harm against which the principle guards is degradation or the imposition of stigma"); supra notes 94-103 and accompanying text (discussing scholarship on protections for dignity and antihumiliation as the aims of equality law).
(220.) Martin Luther King, Jr., Letter from Birmingham Jail, in Why We Can't Wait 92 (Beacon Press 2010) (1964). I use this quotation to evoke the harm of stigma, a paradigmatic type of harm that civil rights laws intend to address. Although racial identity may on occasion be manipulable, I do not intend to suggest that race does not usually meet the test of the old immutability.
(221.) See Bagenstos, supra note 219, at 464.
(222.) Halley, supra note 201, at 92.
(223.) Rubenfeld, supra note 202, at 782 (making this argument with respect to the right to privacy).
(224.) Halley, supra note 201, at 93-94.
(225.) Id. at 94 (discussing Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)).
(226.) Id. at 93 (discussing High Tech Gays v. Def. Indus. Sec. Clearance Office, 668 F. Supp. 1361, 1366 (N.D. Cal. 1987), rev'd in part, vacated in part, 985 F.2d 563 (9th Cir. 1990)).
(227.) See id. at 93-94.
(228.) Id. at 94.
(229.) See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) ("As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group...."); Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 86 (2010) (interpreting the "foundational sex-based equal protection cases of the 1970s" as imposing "constitutional limits on the state's power to enforce sex-role stereotypes").
(230.) Mary Anne Case, "The Very Stereotype the Law Condemns": Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1449 (2000) (discussing the definition of stereotyping for purposes of sex discrimination law).
(231.) Id. at 1476 (footnote omitted).
(232.) Id. (citing Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissenting)).
(233.) Cf. Fishkin, supra note 70, at 7 (arguing that "if we care about giving people the freedom to shape their own lives--so that the contours of their lives are to a greater extent self-chosen rather than dictated by limited opportunities--we ought to care not only about their opportunities measured ex ante from birth, but also about the ranges of opportunities open to them at other points along the way, including for those who have, for one reason or another, failed to jump through important hoops at particular ages").
(234.) See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 731 (2003) (discussing evidence that Congress enacted the Family and Medical Leave Act of 1993 because many states provided maternity but not paternity leave, in violation of the equal protection clause, for reasons "not attributable to any differential physical needs of men and women," but rather based upon "the pervasive sex-role stereotype that caring for family members is women's work").
(235.) See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002) (explaining that the Americans with Disabilities Act of 1990 "seeks to diminish or to eliminate the stereotypical thought processes, the thoughtless actions, and the hostile reactions that far too often bar those with disabilities from participating fully in the Nation's life, including the workplace").
(236.) See, e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) ("Congress' promulgation of the [Age Discrimination in Employment Act of 1967] was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes"--for example, that "productivity and competence decline with old age").
(237.) See, e.g., United States v. Virginia, 518 U.S. 515, 550 (1996) (holding that "generalizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description").
(238.) See id. at 541-45 (rejecting this generalization); see also City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 716-17 (1978) (holding that Title VII of the Civil Rights Act of 1964 forbids employers from requiring female employees to make larger contributions to their pension funds than male employees, even though the pricing is based on statistics showing that women, as a class, live longer than men).
(239.) Frederick Schauer, Profiles, Probabilities, and Stereotypes 150 (2003).
(240.) See id. at 149-51.
(241.) See id. at 139-41; see also Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. Chi. L. Rev. 235, 260 (1971) (mentioning how race-based generalizations may be the result of past discrimination); cf. Tuulia M. Ortner & Monika Sieverding, Where Are the Gender Differences? Male Priming Boosts Spacial Skills in Women, 59 Sex Roles 274, 274 (2008) (finding a "pronounced gender difference" emerging in spacial reasoning capacity when subjects were primed with female gender stereotypes--but not when primed with male gender stereotypes).
(242.) See, e.g., Nussbaum, supra note 89, at 310 & n.54 (arguing that "a protected class defined so broadly as to include the moderately overweight, the short, and the unattractive would be legally unworkable and would bring the entire idea of the protected class into disrepute," and expressing concern regarding "a flood of litigation").
(243.) See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66 (2013).
(244.) See, e.g., Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 79 (1996) (arguing that "ambitious interpretations of equal protection present a practical dilemma: How does the Court cabin the growing number of groups or identities claiming protection?").
(245.) Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753, 1780 (1996).
(246.) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46 (1985).
(247.) See, e.g., Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western Res. L. Rev. 581, 590-93 (1989-90) (discussing the need for limiting principles that explain why legal rules will not result in "a parade of horribles," or, in other words, "untoward results").
(248.) Rubenfeld, supra note 202, at 754-55.
(249.) See id. at 756-60, 756 n.106 (discussing Mill's well-known "harm principle," "that, where 'a person's conduct affects the interests of no persons besides himself ... there should be perfect 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.
(256.) Julie E. Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday 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 Cty. 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. [section] 12112(b)(5)(A) (2012) (requiring that employers "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless [the employer] can demonstrate that the accommodation would impose an undue hardship").
(262.) Id. [section] 2000e-5(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.").
(263.) See supra note 123 and accompanying text.
(264.) See supra note 135 and accompanying text.
(265.) Nancy Fraser, From Redistribution to Recognition?: Dilemmas of Justice in a 'Postsocialist' Age, 212 New Left Rev. 68, 70-73 (1995). Fraser's distinction between recognition and redistribution maps onto the distinction between the cultural and the material. Id. She posits a separate distinction between affirmative and transformative remedies, which maps onto the distinction between corrective and structural reforms. Id. at 82 (defining affirmative remedies 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 framework").
(266.) Id. at 73.
(267.) Nancy Fraser, Rethinking Recognition, 3 New Left Rev. 107, 110 (2000).
(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 to the public fisc. Cf. Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276, 1278-80 (2014) (discussing the financial costs of recognition of same-sex marriage for couples).
(272.) Obergefell gestured at the "material benefits" of marital status, such as preferential tax, inheritance, property law, and insurance treatment, but emphasized that the harm was "more than just material burdens" in that "exclusion from [marriage] has the effect of teaching that gays and lesbians are unequal in important respects." Obergefell v. Hodges, 135 S. Ct. 2584, 2601-02 (2015).
(273.) See, e.g., Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. [section] 4(f)-(g) (2013) (as passed by Senate, Nov. 7, 2013).
(274.) Rubenfeld, supra note 202, at 765.
(275.) Id. at 766.
(276.) See Douglas NeJaime, Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination, 100 Calif. L. Rev. 1169, 1185-87 (2012). Twenty states have such laws, and twelve states introduced similar legislation in the run-up to the Obergefell decision. Monica Davey & Laurie Goodstein, Religion Laws Quickly Fall into Retreat in Indiana and Arkansas, N.Y. Times (Apr. 2, 2015), http://www.nytimes.com/2015 /04/03/us/rights-laws-quickly-fall-into-retreat.html [http://perma.cc/54SH-BSGK]. Notably, Indiana passed a religious freedom law in March 2015, but under pressure from business interests, lawmakers immediately amended the law to specify that it would not allow discrimination based on sexual orientation or gender identity. Id.
(277.) Douglas NeJaime, Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation, 32 Harv. J.L. & Gender 303, 305 n.2, 313 (2009).
(278.) NeJaime, supra note 276, at 1182. This quotation comes from NeJaime's description of the arguments of certain Christian Right advocates, but the same could be said of LGBT rights advocacy that opposes belief systems such as sexism, heterosexism, and homophobia.
(279.) Id. at 1227 n.245 (quoting Douglas Laycock, Afterword, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 189, 189 (Douglas Laycock et al. eds., 2008)).
(280.) There is an exception for those employees defined as "ministers," which allows, for example, the Catholic Church to refuse to hire women as priests. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705-06 (2012) (holding that the first amendment precludes the application of employment discrimination laws to "ministers").
(281.) 42 U.S.C. [section] 2000e-1(a) (2012) ("This subchapter [Equal Employment Opportunities] shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.").
(282.) Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. [section] 6(a) (2013). See generally Mary Anne Case, Legal Protections for the "Personal Best" of Each Employee: Title VII's Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1375-76 (2014) (discussing the breadth of the draft ENDA's religious exemption).
(283.) Joint Statement on Withdrawal of Support for ENDA and Call for Equal Workplace Protections for LGBT People, Lambda Legal: Blog (July 8, 2014), http://www.lambdalegal.org/blog/20140708_joint-statement-withdrawal-support-enda [http://perma.cc/Z3CW-XWSS].
(284.) NeJaime, supra note 276, at 1226-29.
(285.) Id. at 1229 (quoting Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 Nw. J.L. & Soc. Pol'y 206, 212 (2010)).
(286.) See, e.g., Mark L. Rienzi, Substantive Due Process as a Two-Way Street: How the Court Can Reconcile Same-Sex Marriage and Religious Liberty, 68 Stan. L. Rev. Online 18, 19 (2015) ("When the Court recognizes a right because it is deeply personal and important, governments are not free to force unwilling parties to participate in or support the exercise of that right."); Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, 15 Geo. J. Gender & L. 485, 492 (2014) ("The same fundamental values of personal liberty that support an individual's right to live according to his or her sexual identity also support an individual's right to live according to his or her religious convictions.").
(287.) Even one advocate of religious exemptions seems to admit as much. See NeJaime, supra note 276, at 1229 (discussing Thomas Berg's admission that "[g]iven equality's absolute nature, it is hard to see how it can allow for any exemptions" (quoting Berg, supra note 285, at 212)); cf. James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99, 103 (2015) (noting "the dearth of equal protection analysis in the modern debate over discrimination against same-sex couples" as compared to interracial marriage).
(288.) See, e.g., R.M. Puhl et al., Perceptions of Weight Discrimination: Prevalence and Comparison to Race and Gender Discrimination in America, 32 Int'l J. Obesity 992, 998 (2008) (concluding, based on a national sample of adults, that "[w]eight/height discrimination is the third most common type of discrimination among women, and the fourth most prevalent form of discrimination reported by all adults," and the risk of this type of discrimination "increases significantly with higher obesity"); see also Timothy A. Judge & Daniel M. Cable, When It Comes To Pay, Do the Thin Win? The Effect of Weight on Pay for Men and Women, 96 J. Applied Psychol. 95, 95, 103, 107 (2011) (discussing research detailing the prevalence of employer stereotypes that depict obese workers as "lazy and lacking in self-discipline" and how those stereotypes disproportionately affect women, and concluding, based on a longitudinal study of 7,661 individuals, "that for men, increases in weight have positive linear effects on pay but at diminished returns at above-average levels of weight," while "[f]or women, increases in weight have negative linear effects on pay, but the negative effects are stronger at below-average than at above-average weight levels").
(289.) In the United States, only one state and five localities explicitly prohibit "weight" discrimination. See S.F., Cal., Police Code [section] 3301 (2015); Santa Cruz, Cal., Municipal Code [section] 9.83 (2015); Urbana, Ill., Code of Ordinances [section] 12-39 (2015); Mich. Comp. Laws [section] 37.2102 (2014); Binghamton, N.Y., Code of Ordinances [section] 45-2 (2010); Madison, Wis., Code of Ordinances [section] 39.03 (2015). The District of Columbia prohibits discrimination based on "personal appearance" more generally. See D.C. Code [section] 2-1401 (2015).
(290.) Roberta R. Friedman & Rebecca M. Puhl, Weight Bias: A Social Justice Issue, Yale Rudd Ctr. for Food Pol'y & Obesity 8 (2012), http://www.uconnruddcenter.org/files/Pdfs /Rudd_Policy_Brief_Weight_Bias.pdf [http://perma.cc/TPP3-DWRT] (describing typical objections to be that "overweight and obese people don't need legal protection," because "[i]f they want to avoid discrimination, they should simply lose weight" and that "[i]f you fight weight stigma, you'll actually discourage people from trying to lose weight"). Other arguments against legal protection question the prevalence and harmfulness of weight discrimination, are concerned about the potential costs of litigation to business, and query whether alternative strategies, such as education, would better address the problem. Id. Some scholars argue explicitly that discrimination on the basis of obesity is justified due to the characteristic's mutability. See M. Neil Browne et al., Obesity as a Protected Category: The Complexity of Personal Responsibility for Physical Attributes, 14 Mich. St. U.J. Med. & L. 1, 10 (2010) ("[Responsibility is complex, but ultimately, individual choice plays the most prominent role in obesity. Therefore, it is distinguishable from disabilities protected under law and should not be accorded the same protections.").
(291.) Cf. Halley, supra note 8, at 521 (discussing this "pedagogical" argument in favor of anti-gay discrimination). In the context of obesity, discrimination does not seem to be working as an effective pedagogical technique. See, e.g., Angelina R. Sutin & Antonio Terracciano, Perceived Weight Discrimination and Obesity, PLoS ONE (July 24, 2013), http://journals.plos.org /plosone/article?id=10.1371/journal.pone.0070048 [http://perma.cc/GPG6-TT9R] (reporting the results of a nationally representative longitudinal study showing participants who reported weight discrimination were 2.5 times more likely to become obese upon followup); cf. Traci Mann, Secrets From the Eating Lab: The Science of Weight Loss, the Myth of Willpower, and Why You Should Never Diet Again 165 (2015) (discussing studies suggesting that stigma causes weight gain by undermining self-confidence, leading to "a physiological stress response," and making people feel "embarrassed to exercise in public").
(292.) Gary Feldman & Judith Ashton, Jumping the Gun on Weight Discrimination, Bos. Globe (June 2, 2007), http://www.boston.com/news/globe/editorial_opinion/oped/articles/2007 /06/02/jumping_the_gun_on_weight_discrimination [http://perma.cc/GB3F-X9AU]; see also Abigail C. Saguy, What's Wrong with Fat? 85-89 (2013) (discussing "several empirical studies" and "systematic news media analyses" demonstrating that "a personal responsibility frame dominates news coverage of obesity" in the United States); Adam Benforado et al., Broken Scales: Obesity and Justice in America, 53 Emory L.J. 1645, 1708-11 (2004) (identifying and criticizing the ideology of "dispositionalism" that posits that consumers' choices are the causal origins of obesity); Kelly D. Brownell et al., Personal Responsibility and Obesity: A Constructive Approach to a Controversial Issue, 29 Health Aff. 379, 379 (2010) ("Two of the most important words in the national discourse about obesity are 'personal responsibility.'"); Inst. Med. Nat'l Academies, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation 99-101 (Dan Glickman et al. eds., 2012) (discussing the common belief "that obesity results primarily from a failure of personal responsibility to control food intake").
(293.) 42 U.S.C. [section][section] 12101-12213 (2012). Weight restrictions have also been challenged as sex or age discrimination, but these theories require plaintiffs to show that an employer's policy was not evenhanded as to sex or age. See, e.g., Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir. 2000).
(294.) 42 U.S.C. [section] 12102(1)(A) (2012).
(295.) Id. [section] 12102(1)(C). The statute also prohibits discrimination on the basis of "a record of such an impairment." Id. [section] 12102(1)(B).
(296.) Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, [section] 3, 122 Stat. 3553, 3555. Transitory is defined as six months or less. 42 U.S.C. [section] 12102(3)(B). This provision was a reaction to a 1999 Supreme Court precedent holding that to prove she was "regarded as" disabled, a plaintiff had to prove that her employer regarded her as having an impairment that substantially limited her in a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 499-501 (1999). A plaintiff no longer must prove that an employer regarded her as substantially limited. 42 U.S.C. [section] 12102(3)(A).
(297.) 28 C.F.R. [section] 36.104(1)(i) (2015). Congress authorized the EEOC to promulgate these regulations. 42 U.S.C. [section] 12205(a).
(298.) 29 C.F.R. pt. 1630 app. [section] 1630.2(h) (2015) (emphasis added). Prior to revisions in March 2011, the EEOC's Interpretive Guidance on the definition of disability instructed that "except in rare circumstances, obesity is not considered a disabling impairment." Id. app. [section] 1630.2Q. Its pre-ADAAA compliance manual stated that "[b]eing overweight, in and of itself, is not generally an impairment.... On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment." U.S. Equal Emp't Opportunity Comm'n, Compliance Guidelines [section] 902.2(c)(5) (1995) (footnote omitted). Although courts and commentators continue to cite this provision, the EEOC has indicated that this manual has been superseded by the ADAAA. Section 902 Definition of the Term Disability, U.S. Equal Emp. Opportunity Commission (July 25, 2012), http://www.eeoc.gov/policy/docs/902cm.html [http://perma.cc/EC7E-5SAW].
(299.) EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688, 693-94 (E.D. La. 2011) (adopting the EEOC's definition).
(300.) See, e.g., EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006) (holding that "to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition"); Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997) (holding that "obesity, except in special cases where the obesity relates to a physiological disorder, is not a 'physical impairment' within the meaning of the statutes"); Sibilla v. Follett Corp., No. CV 10-1457(AKT), 2012 WL 1077655, at *9 (E.D.N.Y. Mar. 30, 2012) (holding that Francis's "reasoning remains applicable even after the passage of the ADAAA"); Merker v. Miami-Dade Cty., 485 F. Supp. 2d 1349, 1351 (S.D. Fla. 2007) (stating that courts have "uniformly held that obesity, absent some physiological cause, does not qualify as a disability under the ADA"); Ivey v. District of Columbia, 949 A.2d 607, 613 (D.C. 2008) (dismissing the plaintiffs ADA claim because the plaintiff lacked "testimony" that her morbid obesity was "caused by a physiological condition"). But see Res. for Human Dev., Inc., 827 F. Supp. 2d at 693; BNSF Ry. Co. v. Feit, 281 P.3d 225, 231 (Mont. 2012) (interpreting a Montana statute consistently with the ADAAA and concluding that "[o]besity that is not the symptom of a physiological disorder or condition may constitute a 'physical or mental impairment' within the meaning of Montana Code ... if the individual's weight is outside 'normal range' and affects 'one or more body systems'").
(301.) Camille A. Monahan et al., Establishing a Physical Impairment of Weight Under the ADA/ADAAA: Problems of Bias in the Legal System, 29 ABA J. Lab. & Emp. L. 537, 554 (2014) (arguing that the physiological cause requirement "enacts the ideology of blame by seeking to hold severely obese individuals accountable for the disability that is assumed to be within their control").
(302.) Yofi Tirosh, The Right To Be Fat, 12 Yale J. Health Pol'y L. & Ethics 264, 285 & n.73 (2012) (footnote omitted) (collecting studies); see also Mann, supra note 291, at 15-45 (describing research showing that diets fail due to genetic factors, psychological forces, and environmental circumstances, while aptitude for self-control plays only a small role).
(303.) See, e.g., Wagner's Pharmacy, Inc. v. Pennington, No. 2013-SC-000541-DG, 2015 WL 2266374, at *1, *5 (Ky. May 14, 2015) (concluding that expert testimony about "the cause of morbid obesity in general--not specific to the plaintiff' was insufficient to establish a plaintiff's disability under the Kentucky Civil Rights Act, where a doctor testified that "morbid obesity like [the plaintiff s] is caused by a cluster of often unknown physiological abnormalities"); Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Ga. L. Rev. 937, 964 (2012) (discussing the barriers to providing expert testimony as to weight's physiological causes, including cost and the fact that "doctors simply do not know the cause of most people's weight").
(304.) 463 F.3d at 443.
(306.) For instance, in 2011, Starbucks paid $75,000 to settle an EEOC enforcement action alleging it had unreasonably denied accommodation to a barista with dwarfism. Press Release, EEOC, Starbucks To Pay $75,000 To Settle EEOC Disability Discrimination Suit (Aug. 18, 2011), http://www.eeoc.gov/eeoc/newsroom/release/8-18-11.cfm [http://perma.cc /3X7S-X5EX].
(307.) See, e.g., Fredregill v. Nationwide Agribusiness Ins. Co., 992 F. Supp. 1082, 1089-90 (S.D. Iowa 1997) ("If the matter depends on [the employer's] perception, evidence which consists only of a belief that a physical characteristic presents an undesirable image or appearance does not support an inference that [the employer] regarded [the plaintiff s] weight problem as connected to a physiological disorder or condition."); Ivey v. District of Columbia, 949 A.2d 607, 613 (D.C. 2008) (dismissing a claim that an employer regarded a morbidly obese employee as disabled because the evidence only demonstrated that the employee's weight "impaired [her employer's] ability to get along with her," not that the employer regarded her as unable to do her job).
[308.] No. 03-CV-5088 (SLT)(RLM), 2006 WL 3483922, at *13 (E.D.N.Y. Nov. 30, 2006), affd in part, vacated and remanded in part on other grounds, 604 F.3d 72 (2d Cir. 2010).
(310.) Id. at *14.
(311.) Cf. Marc V. Roehling et al., Investigating the Validity of Stereotypes About Overweight Employees: The Relationship Between Body Weight and Normal Personality Traits, 33 Grp. & Org. Mgmt. 392, 392, 419 (2008) (concluding, based on two studies of 3,496 adults, that "body weight is not a practically significant predictor of the personality traits conscientiousness and extraversion in a broad sample of working-age adults, and, therefore, it should not be used as a predictor of personality in employment decisions").
(312.) See supra notes 120-123, 169-170 and accompanying text.
(313.) However, there may be some resistance to the idea of weight loss as traumatic, which conflicts with the before-and-after narrative of weight loss as empowering that saturates American culture. This is not to say weight loss is always experienced as empowering. See, e.g., Alexis Conason et al., Substance Use Following Bariatric Weight Loss Surgery, 148 JAMA Surgery 145 (2013) (providing evidence of increased frequency of substance abuse, particularly alcohol, following weight loss surgery).
(314.) According to one study, pay declines more sharply with increases in weight for women at below-average weights than for those at above-average weights. Judge & Cable, supra note 288, at 102. The explanation may be that employers "celebrate" "very thin" female employees who have met idealized standards, but "as women reach average weight, they have already 'fallen from grace' according to media images and social expectations." Id. at 96.
(315.) See infra note 331 and accompanying text (discussing litigation by flight attendants).
(316.) See Julia Lurie & Nina Liss-Schultz, Jiggle Tests, Dunk Tanks, and Unpaid Labor: How NFL Teams Degrade Their Cheerleaders, Mother Jones (May 22, 2014), http://www .motherjones.com/medi4/2014/05/nfl-cheerleader-lawsuits-sexism [http://perma.cc/4CSA -4SM2].
(317.) But see supra notes 168-169 and accompanying text.
(318.) Tirosh, supra note 302, at 334.
(319.) Id. at 315 ("Even readers who are convinced that being fat without making efforts to lose weight is a bad lifestyle choice should endorse the right to be fat. They should view it as the right to make one's own mistakes in one's own way."). I note that the food industry also employs antipaternalism, freedom, and choice arguments with respect to obesity in an effort to resist regulation. See Saguy, supra note 292, at 75 (discussing advertisements by the advocacy group Center for Consumer Freedom).
(320.) See supra Part II.B.
(321.) Sociologist Abigail Saguy conducted a series of experiments measuring subjects' views on obesity after reading news articles promoting various perspectives, including one attributing the obesity epidemic to lack of personal responsibility and one containing a "message of fat rights and the idea that one can be healthy at every size." Saguy, supra note 292, at 136-39. In one experiment, exposure to the positive message about fat did not reduce approval for weight discrimination relative to a control group. Id. at 139. Saguy concludes that her collective results "suggest news reports on the 'obesity epidemic' intensify antifat stigma but that it is more difficult--in a society so saturated with antifat messages--to lessen antifat prejudice or promote size diversity as a positive value." Id. at 139.
(322.) According to a 2014 Gallup poll, fifty-one percent of Americans would like to lose weight. Personal Weight Situation, Gallup, http://www.gallup.com/poll/7264/personal-weight -situation.aspx [http://perma.cc/MSN6-YJJG].
(323.) Tirosh, supra note 302, at 301.
(324.) Anna Kirkland, Think of the Hippopotamus: Rights Consciousness in the Fat Acceptance Movement, 42 Law & Soc'y Rev. 397, 401-02 (2008) (analyzing interviews with members and leaders of the National Association to Advance Fat Acceptance, and concluding that many were "deeply invested in [a] vision of just treatment in which the body and its abilities are dissociated completely" and weight is considered "irrelevant").
(325.) See, e.g., Health at Every Size, http://www.haescommunity.org [http://perma.cc/4S7Q-RTWG].
(326.) In particular, the analogy between obesity and smoking is often made by public health researchers to justify discriminatory treatment. Saguy, supra note 292, at 73.
(327.) 608 F. Supp. 739, 741 (C.D. Cal. 1984). This case was decided under the Rehabilitation Act of 1973, 29 U.S.C. [section] 794 (1982), the ADA's predecessor. Tudyman, 608 F. Supp. at 740 (discussing the Rehabilitation Act).
(328.) Id. at 740-41.
(329.) Id. at 741.
(331.) Id. at 746. Another court, interpreting New York State's disability discrimination law, held that flight attendants could not challenge Delta Air Lines's weight requirement unless they could show they were "medically incapable of meeting [it] due to some cognizable medical condition." Delta Air Lines v. N.Y. State Div. of Human Rights, 689 N.E.2d 898, 902 (N.Y. 1997); cf. State Div. of Human Rights ex rel. McDermott v. Xerox Corp., 480 N.E.2d 695, 696, 698 (N.Y. 1985) (holding plaintiff was disabled under New York state law on account of her "clinical diagnos[is]" of obesity notwithstanding that the cause "was probably due to bad dietary habits").
(332.) No. 13-0007-WS-C., 2014 WL 554155, at *5 (S.D. Ala. Feb. 12, 2014).
(333.) Id. at *3.
(334.) Id. at *7.
(336.) 429 U.S. 125, 136 (1976), superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076.
(337.) Id. at 127-28.
(338.) Id. at 135 (quoting Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)). This reasoning is "infamous" not only because "[t]he Court ignored the fact that the capacity to gestate distinguishes the sexes physically," but also because "[j]udgments about women's capacity to bear children play a key role in social definitions of gender roles and thus in the social logic of 'discrimination based on gender as such.'" Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 26869 (1992).
(339.) Gilbert, 429 U.S. at 136. The dissent objected that "the characterization of pregnancy as 'voluntary' is not a persuasive factor, for ... 'other than for childbirth disability, [General Electric] had never construed its plan as eliminating all so-called 'voluntary' disabilities,' including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery." Id. at 151 (Brennan, J., dissenting) (quoting Gilbert v. Gen. Elec. Co., 519 F.2d 661, 665 (1975)).
(340.) An insurance program might argue that because pregnancy is foreseeable, it is not the sort of risk that an insurance scheme should cover. But, as Deborah Dinner has argued, foresee-ability "could not do all the logical work" of justifying the distinction between pregnancy and other illnesses, because sickness and injury are a foreseeable part of everyone's life cycle. Deborah Dinner, Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law, 91 Wash. U. L. Rev. 453, 486 (2014).
(341.) Bridges, supra note 160, at 490-91 ("[S]exual assault [statutes that provide that a rapist who causes his victim to become pregnant commits an aggravated offense] are somewhat exceptional because it is rare for the law to embrace and reflect subversive understandings of pregnancy.").
(342.) Dinner, supra note 340, at 486.
(343.) See generally Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678 (1983) ("When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision.").
(344.) 42 U.S.C. [section] 2000e(k) (2012).
(345.) Solomen v. Redwood Advisory Co., 183 F. Supp. 2d 748, 753-55 (E.D. Pa. 2002) (dismissing a pregnancy claim at summary judgment based on plaintiff s inability to "establish that she was affected by the pregnancy at or near the time of her termination"). But see Laro v. New Hampshire, 259 F.3d 1, 14 (1st Cir. 2001) ("[T]he potential for pregnancy is one immutable characteristic which distinguishes men from women and consequently has definite real life consequences."); Ponton v. Newport News Sch. Bd., 632 F. Supp. 1056, 1065 (E.D. Va. 1986) (referring to pregnancy as "an immutable sex characteristic" without explanation).
(346.) Solomen, 183 F. Supp. 2d at 753 (discussing Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 342 (8th Cir. 1997) and Piraino v. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996)).
(347.) Panizzi v. City of Chi. Bd. of Educ., No. 07 C 846, 2007 WL 4233755, at *3 (N.D. Ill. Nov. 19, 2007) (refusing to cover women "planning to become pregnant"); Barnowe v. Kaiser Found. Health Plan of the Nw., No. CV 03-1672-BR, 2005 WL 1113855, at *4 (D. Or. May 4, 2005) (excluding a plaintiff "planning on" pregnancy). But see Ingarra v. Ross Educ., LLC, 13-CV-10882, 2014 WL 688185, at *6 (E.D. Mich. Feb. 21, 2014) (holding that discrimination based on the "desire to become pregnant and bear children" is sex discrimination because "[c]hildbearing capacity only relates to women").
(348.) See, eg., Saks v. Franklin Covey Co., 316 F.3d 337, 347 (2d Cir. 2003) (holding that refusal to cover "surgical impregnation procedures" was not a violation of Title VII or the PDA because "[a]lthough the surgical procedures are performed only on women, the need for the procedures may be traced to male, female, or couple infertility with equal frequency"); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir. 1996) (holding that refusal to cover fertility treatment does not violate the PDA because " [p]regnancy and childbirth, which occur after conception, are strikingly different from infertility, which prevents conception"). But see, e.g., Hall v. Nalco Co., 534 F.3d 644, 648-49 (7th Cir. 2008) (finding that terminating an employee for taking time off to undergo in vitro fertilization (IVF) violates the PDA because " [e]mployees terminated for taking time off to undergo IVF--just like those terminated for taking time off to give birth or receive other pregnancy-related care--will always be women").
(349.) In re Union Pac. R.R. Emp't Practices Litig., 479 F.3d 936, 944 (8th Cir. 2007). The Eighth Circuit was the only court of appeals to consider this question before the Patient Protection and Affordable Care Act mandated contraceptive coverage by employer-sponsored health insurance plans. See 42 U.S.C. [section] 300gg-i3(a)(4) (2012); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012).
(350.) In re Union Pac. R.R. Emp't Practices Litig., 479 F.3d at 944 (refusing to address whether the distinction is that pregnancy is not a "disease" or to explain any other distinction between contraception and other forms of preventative healthcare). A dissent argued that because the health risks of unplanned pregnancy befall only women, the right comparison was between forms of preventative health care provided to men and women. Id. at 948-49 (Bye, J., dissenting).
(351.) Deborah L. Brake & Joanna L. Grossman, Unprotected Sex: The Pregnancy Discrimination Act at 35, 21 Duke J. Gender L. & Pol'y 67, 85 (2013) (surveying recent PDA case law).
(352.) See, e.g., Maldonado v. U.S. Bank, 186 F.3d 759, 768 (7th Cir. 1999) (holding that absent "sufficient specific evidence (apart from general assumptions about pregnancy) that [the pregnant plaintiff] would require special treatment," the employer could not terminate that plaintiff "simply because it 'anticipated' that she would be unable to fulfill its job expectations").
(353.) See, e.g., Troupe v. May Dep't Stores, 20 F.3d 734, 738 (7th Cir. 1994). By contrast to the federal rule, fifteen states, the District of Columbia, and four cities require pregnancy accommodations. Reasonable Accommodations for Pregnant Workers: State and Local Laws, Nat'l Partnership for Women & Families (July 2015), http://www.national partnership.org/research-library/workplace-fairness/pregnancy-discrimination/reasonable-a ccommodations-for-pregnant-workers-state-laws.pdf [http://perma.cc/S5AP-RFFH]. Some private employers also require accommodation. See Lydia DePillis, Under Pressure, Wal-Mart Upgrades Its Policy for Helping Pregnant Workers, Wash. Post: Wonkblog (Apr. 5, 2014), http://www.washmgtonpost.com/blogs/wonkblog/wp/2014/04/05/under-pressure-walmart -upgrades-its-policy-for-helping-pregnant-workers [http://perma.cc/47HB-NLWR].
(354.) See supra note 261 and accompanying text.
(355.) See supra note 294 and accompanying text.
(356.) E.g., McCarty v. City of Eagan, 16 F. Supp. 3d 1019, 1027 (D. Minn. 2014); see also Conley v. United Parcel Serv., 88 F. Supp. 2d 16, 19 (E.D.N.Y. 2000) ("Conditions, such as pregnancy, that are not the result of a physiological disorder are not impairments.... ").
(357.) 29 C.F.R. pt. 1630 app. [section] 1630.2(h) (2011) ("[C]onditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. However, a pregnancyrelated impairment that substantially limits a major life activity is a disability.... "); id. app. [section] 1604.10(b) ("Disabilities caused by or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.... "); see also U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC Notice No. 915.003 (2014), http://www.eeoc.gov/laws /guidance/pregnancy_guidance.cfm [http://perma.cc/4MZ9-QQ3V] (giving the example of gestational diabetes).
A "pregnancy-related impairment" may also count as a condition "regarded as" a disability, so long as it is not "transitory and minor." 29 C.F.R. pt. 1630 app. [section] 1630.2(h) (2011); see Nayak v. St. Vincent Hosp. & Health Care Ctr., No. 1:12-cv-0817-RLY-MJD, 2013 WL 121838, at *2-3 (S.D. Ind. Jan. 9, 2013) (holding that pregnancy complications lasting ten months constituted an impairment under the "more lenient ADAAA"). "Transitory" means "with an actual expected duration of 6 months or less." 42 U.S.C. [section] 12102(3)(B) (2012). However, reasonable accommodation is not required for impairments that are only "regarded as" disabilities. Id. [section] 12201(h).
(358.) See, e.g., Leahy v. Gap, Inc., No. 07-CV-2008, 2008 WL 2946007, at *5 (E.D.N.Y. July 29, 2008) (holding that an "inability to perform heavy lifting, climbing ladders and other strenuous movements" associated with pregnancy was not a disability).
(359.) See, e.g., Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 976 (S.D. Iowa 2002), affd, 340 F.3d 543 (8th Cir. 2003) (holding that "periodic nausea, vomiting, dizziness, severe headaches, and fatigue" are not disabilities because they are "part and parcel of a normal pregnancy").
(361.) 29 C.F.R. [section] 1630.2(j)(i)(ix) (2014) (providing that even "[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting"); see also Heatherly v. Portillo's Hot Dogs, Inc., 958 F. Supp. 2d 913, 920 (N.D. 111. 2013) (rejecting the argument that limitations on heavy lifting necessitated by plaintiff's "high risk pregnancy" were not impairments under the ADAAA because the pregnancy was temporary).
(362.) See Joan C. Williams et al., A Sip of Cool Water: Pregnancy Accommodation After the ADA Amendments Act, 32 Yale L. & Pol'y Rev. 97, 123-35 (2013) (surveying post-ADAAA cases).
(363.) See supra note 357 and accompanying text. Thus, while courts may interpret the ADAAA's revised definition of impairment to include "significant pregnancy-related complications," Mayorga v. Alorica, Inc., No. 12-21578-CIV, 2012 WL 3043021, at *6 (S.D. Fla. July 25, 2012), they may continue to exclude those complications deemed "routine," Lang v. Wal-Mart Stores E., L.P., No. 13-CV-349-LM, 2015 WL 898026, at *4 (D.N.H. Mar. 3, 2015) (holding that a plaintiff was not disabled because she had "not presented evidence that the lifting restrictions suggested by her doctor were the result of a disorder or an unusual or abnormal circumstance, rather than a routine suggestion to avoid strenuous physical labor during pregnancy").
(364.) See supra note 344 and accompanying text.
(365.) 135 S. Ct. 1338, 1353-54 (2015).
(366.) See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) (setting forth a burden-shifting framework for cases alleging disparate treatment based on race in hiring).
(367.) Young, 135 S. Ct. at 1353-54 (holding that, at the final stage of the inquiry, a plaintiff may survive summary judgment "by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's 'legitimate, nondiscriminatory' reasons are not sufficiently strong to justify the burden, but rather--when considered along with the burden imposed--give rise to an inference of intentional discrimination"). The opinion does not define "a significant burden," but it states that one way a plaintiff may demonstrate a significant burden is with "evidence that the employer accommodates--a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers." Id. The opinion also fails to clarify what sort of employer reasons would be "sufficiently strong to justify the burden," except to say those reasons "normally cannot consist simply of a claim that it is more expensive or less convenient" to accommodate pregnant workers. Id. The majority left open the question of the meaning of "intentional discrimination" under the PDA, although it did not adopt the view implied by Justice Kennedy's dissent, that a plaintiff must show something such as "animus or hostility" and not mere "indifference" to pregnant women. Id. at 1366-67 (Kennedy, J., dissenting).
(368.) See Young v. United Parcel Serv., Inc., 707 F.3d 437, 440 (4th Cir. 2013), rev'd, 135 S. Ct. 1338 (2015); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548 (7th Cir. 2011); Reeves v. Swift Transp. Co., 446 F.3d 637, 641 (6th Cir. 2006); Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1311-1313 (11th Cir. 1999); Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 208 (5th Cir. 1998); f EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1198-99 (10th Cir. 2000) (holding that pregnant employees must be treated the same as those with off-the-job injuries). But see Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996) (holding that a plaintiff had established a prima facie case under the PDA by showing that her employer offered accommodations to employees with on-the-job injuries, but not pregnant employees).
(369.) See Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. Davis L. Rev. 961, 1022 (2013). ("The statute requires that employers' treatment of pregnant employees be compared to their treatment of all employees 'similar in their ability to work or not work,' not all employees similar in the cause of their ability to work or not work.").
(370.) Although this assumption has gone unstated in many judicial opinions, Deborah Widiss has noted that "[e]mployers might argue that other areas of employment law distinguish between work and non-work injuries or that employers naturally bear greater responsibility for accommodating workplace injuries." Id. at 1032. In his concurrence in Young, Justice Alito concluded that UPS had a "neutral" reason for providing accommodations for on-thejob injuries, because otherwise, those employees might have been eligible for worker's compensation benefits. Young, 135 S. Ct. at 1360 (Alito, J., concurring). If the premise of this argument is that worker's compensation benefits are more expensive than accommodations, it is in tension with the majority's holding that costs and inconvenience do not justify significant burdens on pregnant workers. See id. at 1354 (majority opinion). Justice Alito's premise is more likely that a policy resulting from worker's compensation rules is not one "because of' pregnancy. The majority opinion does not reach any determinate holding on this issue. See supra note 367 and accompanying text.
(371.) Young, 135 S. Ct. at 1344.
(373.) Id. at 1347.
(375.) Id. (quoting Young v. United Parcel Serv., Inc., 707 F.3d 437, 448 (4th Cir. 2013)).
(376.) See id. at 1350 (describing the dilemma). Rather than resolving this dilemma, which might have required the Court to clarify the types of attitudes that might amount to "intentional discrimination" under the PDA, the Court established a complicated burden-shifting framework that may prompt judges to leave this question to the jury. See supra note 367 and accompanying text.
(377.) In the context of IVF, pregnancy is not just understood as a personal choice, but a choice that may also be subjected to harsh and intrusive judgments. Women seeking treatment for infertility can be stereotyped as "emotional or desperate" and therefore incapable of making reasonable judgments about whether a procedure is worth the cost. Jody Lynee Madeira, Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, 71 Md. L. Rev. 339, 343 (2012). They may also be faulted for "waiting too long" to have children. See Carrie Friese et al., Rethinking the Biological Clock: Eleventh Hour Moms, Miracle Moms and Meanings of Age-Related Infertility, 63 Soc. Sci. & Med. 1550, 1551 (2006).
(378.) See Young, 707 F.3d at 440. In its opinion reversing the Fourth Circuit, the Supreme Court left out the fact of Young's IVF, framing Young's story simply as one in which, "after suffering several miscarriages, she became pregnant." Young, 135 S. Ct. at 1344.
(379.) Young, 707 F.3d at 439-40.
(380.) Id. at 448 (following other circuits' opinions in refusing to interpret the PDA to require accommodation of pregnant employees, which could come "perhaps even at the expense of other, nonpregnant employees").
(381.) The premise may also be a sort of process-based argument that women ought to have bargained for pregnancy accommodations.
(382.) See supra note 367 and accompanying text. The Court suggested that employers would be permitted to accommodate, for example, workers "who drive (and are injured) in extrahazardous conditions" without having to accommodate pregnant workers as well. Young, 135 S. Ct. at 1350; see also id. at 1358 n.3 (Alito, J., concurring) (describing hypothetical workplace heroic efforts). It was this concern--about preserving the employer's prerogative to reward valued risk-taking without also having to accommodate pregnancy--that prevented the Court from adopting Young's interpretation of the PDA. Id. at 1350 (majority opinion). The distinction between injuries sustained through pregnancy and extrahazardous work might be the on-the-job, off-the-job one. See supra note 370 and accompanying text. But the choice of hypothetical scenarios, even though phrased in sex-neutral terms, suggests an implicit moral prioritization of traditionally masculine heroics (like firefighting) over feminine travails (like pregnancy).
(383.) See Hoffman, supra note 5, at 1541 (arguing that the new immutability might compel protection of parental status).
(384.) Bridges, supra note 160, at 461; cf. Joan C. Callahan & Dorothy E. Roberts, A Feminist Social Justice Approach to Reproduction-Assisting Technologies: A Case Study on the Limits of Liberal Theory, 84 Ky. L.J. 1197, 1225 (1996) ("Our society does not think it is just fine for people to remain single and childless deliberately or for married people to remain childless deliberately. Infertility is constructed as a nearly unbearable tragedy; deliberate childlessness is constructed as nearly unimaginable selfishness."); Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 Colum. L. Rev. 181, 183-84 (2001) (coining the term "repronormativity" to describe "the complex ways in which reproduction is incentivized and subsidized in ways that may bear upon the life choices women face").
Although this positive construction of pregnancy may be hegemonic in the sense Khiara Bridges describes, it is not universal. See, e.g., Bridges, supra note 160, at 503 (discussing the construction of pregnancy for an unmarried woman under eighteen as "far from a positive understanding," in Michael M. v. Superior Court, 450 U.S. 464 (1981)); Shari Motro, The Price of Pleasure, 104 Nw. U. L. Rev. 917, 927 (2010) ("The derogatory term 'knocked up' captures the many indignities to which unmarried pregnant women are subjected."). Moreover, these positive views of pregnancy may be historically specific. See Kelly Oliver, Knock Me Up, Knock Me Down: Images of Pregnancy in Hollywood Films 1-2 (2012) (arguing, based on a study of popular American films, that " [p]regnancy and pregnant bodies have gone from shameful and hidden to sexy and spectacular" during the late twentieth century); cf. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 641 n.9 (1974) (discussing a mandatory pregnancy leave policy for schoolteachers enacted in 1952 in part "to insulate schoolchildren from the sight of conspicuously pregnant women"). Bridges notes that with respect to poor women, welfare law constructs pregnancy as an injury to the body politic while at the same time denying public funds for abortion. Bridges, supra note 160, at 501-07.
(385.) Bridges, supra note 160, at 462 (emphasis omitted).
(386.) Id. at 465 (quoting Senator Barack Obama, Final Presidential Debate (Oct. 15, 2008), http://debates.org/index.php?page=october-15-2008-debate-transcript [http://perma.cc/V N3G-4SQD]).
(387.) Even assuming a woman did not want to become a parent, she may oppose abortion for reasons of conscience or religion, or she may not have access to an abortion provider. For these sorts of reasons, in the 1970s, many pro-life advocates joined feminists in support of the PDA. Dinner, supra note 340, at 501 (quoting one pro-life PDA advocate as arguing that denial of "'economic equality' to pregnant workers ... made a woman's 'decision to abort' not 'the product of free choice but of economic coercion'" (citing Discrimination on the Basis of Pregnancy, 1977: Hearings on S. 995 Before the Subcomm. on Labor of the Comm. on Human Res., 95th Cong. 301, 436-37 (1977) (statement of Jacqueline M. Nolan-Haley, Special Counsel, American Citizens Concerned for Life, Inc.)).
(388.) Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (invalidating a state statute authorizing sterilization as a criminal punishment on the ground that "[m]arriage and procreation are fundamental to the very existence and survival of the race").
(389.) See supra Part II.C.
(390.) Rubenfeld, supra note 202, at 782.
(392.) See supra Part II.E.
(393.) As legal historian Dinner has documented, in the 1970s, in opposition to the PDA, "[b]usiness trade associations and state officials argued that because the legalization of birth control and abortion had rendered pregnancy a private choice, the costs of reproduction should remain a private responsibility." Dinner, supra note 340, at 480. In response, feminist advocacy for the PDA in the 1970s "drew upon a socialist feminist tradition that emphasized the economic value of reproductive labor" and "[t]he belief that childbearing had general societal value and not merely personal value." Id. at 504.
(394.) See supra Part II.A.
(395.) Motro, supra note 384, at 933.
(396.) Id. at 933-34; cf. Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1409 (2009) ("[T]he individual right to terminate a pregnancy created by Roe v. Wade might have the effect ... of legitimating the profoundly inadequate social welfare net and hence the excessive economic burdens placed on poor women and men who decide to parent.").
(397.) See, e.g., Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies 106-18 (1995); Dorothy Roberts, Killing the Black Body 209-17 (1997); Anna Marie Smith, Welfare Reform and Sexual Regulation 147-58 (2007).
(398.) See supra Part II.D.
(399.) See supra notes 349-350 and accompanying text.
(400.) See David Orentlicher, Discrimination out of Dismissiveness: The Example of Infertility, 85 Ind. L.J. 143, 154-56 (2010) (discussing the psychological trauma caused by infertility). Only fifteen states require insurance coverage for infertility. Insurance Coverage in Your State, RESOLVE, http://www.resolve.org/family-building-options/insurance_coverage/state-coverage .html [http://perma.cc/29DZ-96LK]. Circuit courts are split on whether the ADA or PDA requires coverage of fertility treatments. See supra note 348 and accompanying text.
(401.) 95 F.3d 674, 680 (8th Cir. 1996). The Eighth Circuit did not view this statement as direct evidence of sex discrimination, because the bar on fertility treatments applied "equally to all individuals, male or female." Id. But even a facially neutral policy is impermissible if enacted for a discriminatory reason. See, e.g., Lorance v. AT&T Techs., Inc., 490 U.S. 900, 912 (1989).
(402.) Kyle C. Velte, So You Want to Have a Second Child? Second Child Bias and the Justification-Suppression Model of Prejudice in Family Responsibilities Discrimination, 61 Buff. L. Rev. 909 (2013).
(403.) See, e.g., Guglietta v. Meredith Corp., 301 F. Supp. 2d 209, 214 (D. Conn. 2004) (refusing to hold that Title VII protects a plaintiff on account of her status as a "woman with childcare difficulties"). Although Title VII does not prohibit discrimination based on parental status, some state statutes do. See, e.g., Alaska Stat. Ann. [section] 18.80.200 (West 2015) ("parenthood"); CONN. Gen. Stat. Ann. [section] 46a-60(a)(9) (West 2015) ("familial responsibilities"); D.C. Code Ann. [section] 2-1402.11 (West 2012) ("family responsibilities"). The Family Medical Leave Act (FMLA) only requires that employers provide very limited accommodation of parenting in the form of unpaid leave of twelve weeks for the birth or adoption of a child or for a child's "serious health condition." 29 U.S.C. [section] 2612(a)(1)(A)-(C) (2012); see also Jessica A. Clarke, Beyond Equality? Against the Universal Turn in Workplace Protections, 86 Ind. L.J. 1219, 1233-35 (2011) (discussing limitations of the FMLA).
(404.) See Clarke, supra note 403, at 1236-37, 1278-79.
(405.) Transcript of Oral Argument at 51, Young v. United Parcel Serv., Inc., 134 S. Ct. 2898 (2015) (No. 12-1226). Justice Alito asked, "[I]s there really a dispute that if a UPS driver fell off his all-terrain vehicle during--on the weekend and was unable to lift that that person would not be given light duty?" Id. Counsel for UPS responded that the accommodation would not have been authorized. Id.
(406.) Young v. United Parcel Serv., Inc., 707 F.3d 437, 448 (4th Cir. 2013), rev'd, 134 S. Ct. 2898 (2015). These hypothetical employees might be covered today under the amended ADA. See supra note 296 and accompanying text.
(407.) See, e.g., Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 Am. U. J. Gender Soc. Pol'y & L. 13, 21 n.15 (1999) (arguing that, in contrast to other life choices, children are "society-preserving").
(408.) See supra Part II.F.
(409.) 134 S. Ct. 2751 2759 (2015).
(410.) 42 U.S.C. [section][section] 2000bb to 2000bb-4 (2012).
(411.) Id. [section] 2000bb-1(b) (providing that the "[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest").
(412.) Hobby Lobby, 134 S. Ct. at 2780 (citing Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965)). The Court noted that the government had also argued the contraceptive mandate was required for reasons of public health and gender equality, but it found these concerns without sufficient "focus." Id. at 2779. The compelling government interest, according to the Court, must be the "marginal interest in enforcing the contraceptive mandate in these cases," specifically, how the objecting corporation's employees might be harmed. Id.
(413.) See id. at 2800 n.23 (Ginsburg, J., dissenting).
(414.) Id. at 2780-81 (majority opinion). Alternatively, the Court speculated that insurers could make separate payments, as they may for certain non-profit religious employers, without reaching a holding on whether this would comply with the RFRA. Id. at 2782.
(415.) Id. at 2802-04 (Ginsburg, J., dissenting).
(416.) Id. at 2783 (majority opinion).
(417.) The majority opinion assumes that the compelling government interest is "in guaranteeing cost-free access to the four challenged contraceptive methods" rather than gender equality writ large. Id. at 2779-80. However, while Justice Kennedy joined the majority opinion, in his separate concurrence he recognized the government's "compelling interest in the health of female employees." Id. at 2786 (Kennedy, J., concurring).
(418.) See Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million "Need Not Apply": The Case for Reforming Criminal Background Checks for Employment, Nat'l Emp. L. Project 13-18, 30 n.60 (Mar. 2011), http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf [http://perma.cc/7UAK-KPZE] (discussing the results of a survey of job posting ads in the commonly used online forum Craigslist); Background Checking: Conducting Criminal Background Checks, Soc'y for Human Resource Mgmt. 5 (Jan. 22, 2010), http://www .shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx [http://perma.cc/4MKV-YKY7] (surveying 347 randomly selected human resources professionals who are members of the Society for Human Resource Management and finding ninety-three percent reported screening at least some job applicants for criminal records).
(419.) Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH 7 (2005), http://www.search.org/files/pdf/rntfcscjri.pdf [http://perma.cc/WNJ8-NS2D] (describing the background check business as consisting of "a few large industry players" and "hundreds, perhaps even thousands, of regional and local companies").
(420.) Rodriguez & Emsellem, supra note 418, at 3, 27 n.2. Individuals with criminal records may include not just those who were incarcerated, but also those who were convicted but not incarcerated, and even those who were arrested but not convicted for reasons such as factual innocence. Id. at 7.
(421.) Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, Bureau Just. Stat. 5 tbl.5 (2003), http://www.bjs.gov/content/pub/pdf/piusp01.pdf [http:// perma.cc/A27F-P5SP] (reporting that 1.4% of white adults, 8.9% of black adults, and 4.3% of Hispanic adults have been incarcerated in state or federal prisons); EEOC Arrest and Conviction Records Guidance, supra note 19, at 9 (reporting, based on FBI and Census Bureau statistics, that twenty-eight percent of arrests in 2010 were of African Americans, while African Americans make up only fourteen percent of the u.S. population, and that, while arrest data for Hispanics is difficult to find, "[i]n 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population" according to the DEA).
(422.) EEOC Arrest and Conviction Records Guidance, supra note 19, at 9, 37 n.68. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (claiming that practices of mass incarceration in the United States have constructed a new racial caste system); David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (1999) (arguing that the U.S. criminal justice system relies on race and class inequalities).
(423.) Devah Pager et al., Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 Annals Am. Acad. Pol. & Soc. Sci. 195, 198 (2009); Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 947 (2003).
(424.) Pager, supra note 423, at 957-58 (describing an audit study of Milwaukee employers in which the percentage of callbacks received by applicants was: thirty-four percent for the white applicant with no criminal record, seventeen percent for the white applicant with a criminal record, fourteen percent for the black applicant with no criminal record, and five percent for the black applicant with a criminal record); cf. Pager et al., supra note 423, at 199, 200 fig.1 (discussing an audit study of New York City employers in which the percentage of callbacks received by applicants was: thirty-one percent for the white applicant with no criminal record, twenty-two percent for the white applicant with a criminal record, twenty-five percent for the black applicant with no criminal record, and ten percent for the black applicant with a criminal record).
(425.) Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
(426.) See 42 U.S.C. [section] 2000e-2(k) (2012). If the components of an employer's "decision-making process are not capable of separation for analysis," the plaintiff can argue that the decision-making process as a whole caused a disparate impact, rather than a specific employment practice. Id. [section] 2000e-2(k)(B)(i).
(427.) EEOC Arrest and Conviction Records Guidance, supra note 19, at 1. But see EEOC v. Freeman, 961 F. Supp. 2d 783, 798 (D. Md. 2013) (refusing to accept national statistics because they were not "representative of the relevant applicant pool" and because they reflected arrest and incarceration rates when the employer's hiring criteria did not consider arrests or incarceration).
(428.) 42 U.S.C. [section] 2000e-2(k)(1)(A)(i) (2012). A plaintiff can rebut this defense by showing that the employer refused to adopt an alternative employment practice that would have fulfilled its business purpose while avoiding the disparate impact. Id. [section] 2000e-2(k)(1)(A)(ii), (C); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
(429.) EEOC Arrest and Conviction Records Guidance, supra note 19, at 1.
(431.) Id. at 2 (citing Green v. Mo. Pac. R.R. Co., 549 F.2d 1158, 1160 (8th Cir. 1977)). The EEOC has clarified that an individualized assessment is not required in all cases. Id. at 2, 14. An employer may screen out applicants with criminal records if it has data to "link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." Id. at 14. That data must meet the agency's standards for validity studies. Id. at 14, 42 n.111 (discussing standards for validity studies under 29 C.F.R. [section] 1607.5 (2011)). Additionally, employers who must comply with federal rules or licensing requirements that prohibit the hiring of employees with certain criminal records are not liable. EEOC Arrest and Conviction Records Guidance, supra note 19, at 20-23 (giving examples such as bank employees and jobs requiring security clearances).
(432.) Ban the Box, Nat'l Emp. L. Project 1, 3 (July 1, 2015), http://www.nelp.org/page /-/SCLP/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf [http://perma.cc/PR7N-3C PM]. Other states have gone further, barring consideration of criminal history except under specified circumstances related to job requirements, business needs, or safety concerns. Haw. Rev. Stat. [section] 378-2.5(a) (2014); Kan. Stat. Ann. [section] 22-4710(10 (2014); N.Y. Correct. Law [section] 752(1) (McKinney 2014); 18 Pa. Cons. Stat. [section] 9125(b) (2015); Wis. Stat. [section] 111.335 (2014).
(433.) Lucas Loafman & Andrew Little, Race, Employment, and Crime: The Shifting Landscape of Disparate Impact Discrimination Based on Criminal Convictions, 51 Am. Bus. L.J. 251, 291 (2014).
(434.) A number of studies have concluded that, under certain circumstances, employment opportunities may decrease recidivism. See, e.g., Christopher Uggen & Sarah K.S. Shannon, Productive Addicts and Harm Reduction: How Work Reduces Crime--but Not Drug Use, 61 Soc. Probs. 105, 106 (2014) (discussing the theoretical and empirical support for the view that work decreases crime among adults); Christopher Uggen, Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism, 67 Am. Soc. Rev. 529, 542 (2000) (concluding that offenders over the age of twenty-six who are provided with "even marginal employment opportunities are less likely to reoffend than those not provided such opportunities").
(435.) One set of researchers reviewed the literature and found only one study examining the likelihood that those with criminal records will commit workplace crimes. That study, which examined a sample of 960 New Zealanders, found that those with juvenile criminal records between the ages of thirteen and sixteen were no more likely to engage in "a wide range of counterproductive work behaviors" and were somewhat less likely to engage in fighting or stealing at work by age twenty-six. Stacy A. Hickox & Mark V. Roehling, Negative Credentials: Fair and Effective Consideration of Criminal Records, 50 Am. Bus. L.J. 201, 207 (2013) (discussing the findings in Brent W. Roberts et al., Predicting the Counterproductive Employee in a Child-to-Adult Prospective Study, 92 J. Applied Psychol. 1427, 1427-30, 1434 (2007)).
(436.) Shawn Bushway et al., Private Providers of Criminal History Records: Do You Get What You Pay For?, in Barriers to Reentry?: The Labor Market for Released Prisoners in Post-Industrial America 174, 189 (Shawn Bushway et al. eds., 2007) (finding a high rate of false negatives in criminal history reports from both a private vendor and an FBI database).
(437.) SEARCH, supra note 419, at 83.
(438.) Rodriguez & Emsellem, supra note 418, at 15.
(439.) Id. at 13-14.
(440.) Id. at 16-17.
(441.) See, eg., Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of Widespread Criminal Background Checks, 47 Criminology 327, 350 (2009) (measuring "the number of years that those who have a prior arrest need to stay clean to be considered 'close enough' to those who have never been arrested" and concluding that the answer depends on the age of the offender and the type of crime previously committed); Megan C. Kurlychek et al., Enduring Risk? Old Criminal Records and Predictions of Future Criminal Involvement, 53 Crime & DelinQ. 64, 70 (2007) (concluding that the risk of recidivism diminishes over time using a data set of 670 males born in 1942 in Racine, Wisconsin); Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology & Pub. Pol'y 483, 483 (2006) [hereinafter Kurlychek et al., Scarlet Letters] (reporting similar results from a data set based on a cohort born in Philadelphia, Pennsylvania, in 1958).
(442.) Noah Zatz, Presentation at the Colloquium on Scholarship in Employment & Labor Law, from Redemption to Original Sin: Reframing the Relative Risks of Hiring People with Criminal Convictions (Sept. 11, 2015). One study found, for example, that eighteen-year-old men who had never been arrested had rates of arrest very close to those of past offenders at age twenty-four. Kurlychek et al., Scarlet Letters, supra note 441, at 494.
(443.) Ben Geiger, Comment, The Case for Treating Ex-Offenders as a Suspect Class, 94 Calif. L. Rev. 1191, 1219 (2006) (discussing how, along with the difficulties of convincing private vendors to change criminal records in their databases, "only a fraction of states allow for some form of clearing of post-conviction records, and even those few states impose significant administrative and evidentiary hurdles to legally available remedies").
(444.) Letter from Patrick Morrisey, Att'y Gen. of W. Va., et al., to Jacqueline A. Berrien, Chair, U.S. EEOC, et al. 3 (July 24, 2013), http://dojmt.gov/wp-content/uploads/EEOC-Letter -Final.pdf [http://perma.cc/ZF96-FJJX]; see also Hans A. von Spakovsky, The Dangerous Impact of Barring Criminal Background Checks: Congress Needs To Overrule the EEOC's New Employment "Guidelines," Heritage Found. (May 31, 2012), http://www.heritage.org/home/research/reports/2012/05/the-dangerous-impact-of -barring-criminal-background-checks [http://perma.cc/PPU7-G948] ("The April Guidance issued by the EEOC is based on a faulty premise: that convicted felons are a protected class under federal law.").
(445.) von Spakovsky, supra note 444 (quoting Johnson v. Bush, 214 F. Supp. 2d 1333, 1341 (S.D. Fla. 2002)).
(446.) Letter from Patrick Morrisey et al., to Jacqueline A. Berrien et al., supra note 444, at 4. In support of this argument, the Attorneys General pointed to examples in the EEOC guidance directing employers to consider various factors in addition to criminal convictions, such as whether the applicant has reformed. Id. But whether an employer considers factors surrounding a conviction goes to the question of whether a background check policy is justified for business reasons, such as preventing on-the-job crime.
(447.) EEOC v. Carolina Freight Carriers Corp., 723 F. Supp. 734, 753 (S.D. Fla. 1989).
(448.) EEOC v. Freeman, 961 F. Supp. 2d 783, 785 (D. Md. 2013) (dismissing an action alleging that an employer's practice of considering criminal history and credit records had a disparate impact on African American and Hispanic job applicants on the ground that the EEOC failed to provide competent expert testimony regarding statistical disparities).
(449.) Letter from Patrick Morrisey et al., to Jacqueline A. Berrien et al., supra note 444, at 3 (citing Carolina Freight Carriers Corp., 723 F. Supp. at 753).
(450.) See James B. Jacobs, The Eternal Criminal Record 282 (2015) (arguing that discrimination based on criminal records is different than discrimination based on religion, because, "in the case of religion, a person should not have to make a choice on account of other people's prejudices" but in the case of criminal records, "[p]ublic policy strongly condemns criminal conduct").
(451.) This is a variation of the argument that the revised immutability fails to cover traits that are inessential or stigmatized. See supra Part II.B.
(452.) Amy Myrick, Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self, 47 Law & Soc'y Rev. 73, 74 (2013).
(453.) Id. at 93.
(454.) Id. at 95.
(455.) Id. at 94.
(456.) See supra note 323 and accompanying text.
(457.) See supra Part II.C.
(458.) Cf. Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild Their Lives 5 (2001) (discussing "criminal essentialism").
(459.) See, e.g., Hans Toch, Foreword to Maruna, supra note 458, at xvi.
(460.) Maruna, supra note 458, at 86 (discussing individuals for whom the idea of "going straight" may be inconceivable, akin to being "stripped of one's identity").
(461.) See, e.g., id. at 97 (discussing redemption narratives in which "making good is part of a higher mission, fulfilling a role that had been inherent in the person's true self').
(462.) Rodriguez & Emsellem, supra note 418, at 12.
(463.) See supra note 126 and accompanying text.
(464.) A focus on systemic forms of inequality raises the question of whether the problem can be addressed in a single sphere, such as employment, or whether it requires more far-reaching interventions into, for example, housing markets, politics, education, criminal justice, and even family and social networks. See generally Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock in White Advantage (2014) (discussing how racial inequality operates as a set of reinforcing feedback loops across a number of domains). I do not argue that systemic inequality can be addressed solely through employment regulation, but rather that employment discrimination law could be part of the solution. Despite its many limitations and drawbacks, employment discrimination law has achieved dramatic change in the American workplace. See, e.g., Estlund, supra note 11, at 4 (discussing the "significant body of empirical research on intergroup interaction" that supports the claim that the workplace integration brought about by Title VII reduces racial biases); Joni Hersch & Jennifer Bennett Shinall, Fifty Years Later: The Legacy of the Civil Rights Act of 1964, 34 J. Pol. Analysis & Mgmt. 424, 425 (2015) (concluding that the Civil Rights Act "was largely successful in improving opportunities for underserved groups" and that "[b]y banning discrimination in employment and providing discrimination victims an outlet through which they could air grievances against their employers, the Act changed the face of employment"); Vicki Schultz, Taking Sex Seriously, 91 Denv. U. L. Rev. (forthcoming 2015) (manuscript at 10-14) (on file with author) (describing the uneven but important achievements of Title VII for sex equality).
(465.) Joseph Fishkin, The Anti-Bottleneck Principle in Employment Discrimination Law, 91 Wash. U. L. Rev. 1429, 1438 (2014) ("Some might argue that we need no such principles: instead law ought to require 'equal opportunity,' perhaps in the form of meritocratic treatment, across the board.").
(466.) See Cynthia L. Estlund, Wrongful Discharge Protections in an At-Will World, 74 Tex. L. Rev. 1655, 1657-58 (1996) (discussing the traditional "at-will rule" of employment that "grew out of broad notions of employer property rights and freedom of contract").
(467.) Rachel Arnow-Richman, Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance, 42 Conn. L. Rev. 1081, 1083 (2010).
(468.) See supra note 12 and accompanying text.
(469.) 42 U.S.C. [section] 2000e(j) (2012) (religion); id. [section] 12112(b)(5)(A) (disability).
(470.) Id. [section] 2000e-2(e)(1). Under Title VII, however, race is never a BFOQ. Id.
(471.) Id. [section] 2000e-2(k)(1)(A)(i).
(472.) Id. [section] 12112(b)(5)(A).
(473.) D.C. Code [section] 2-1401.01 (2012).
(474.) Cf. Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 53-54 (2009) (discussing a "universalist version" of disability accommodation that "would demand that employers design physical and institutional structures (including work schedules and work tasks) in a way that reasonably takes account of the largest possible range of physical and mental abilities" and "provide[s] reasonable flexibility to all potential employees whose physical or mental abilities still are not taken into account"); Michael Ashley Stein et al., Accommodating Every Body, 81 U. Chi. L. Rev. 689, 693 (2014) (arguing for "extending an ADA-like reasonable-accommodation mandate to all work-capable members of the general population for whom the provision of reasonable accommodation is necessary to give meaningful access to enable their ability to work").
(475.) See, e.g., Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights 192 (2006) (discussing Supreme Court opinions that frame rights not as questions of equality for minorities, "but as ... rights that, like a rising tide, will lift the boat of every person in America"); see also Samuel R. Bagenstos, Universalism and Civil Rights (with Notes on Voting Rights After Shelby), 123 Yale L.J. 2838, 2844-47 (2014) (discussing arguments in favor of universalism).
(476.) See, eg., Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1279 (2012) (discussing psychological research suggesting that the reason discrimination plaintiffs fare poorly in court is that "in all but the most compelling factual circumstances, most people believe that some measure of merit--such as effort or ability-is a more likely explanation for why minorities fail").
(477.) See Clarke, supra note 403, at 1242-45 (describing these advantages of universal policies in the context of sex discrimination).
(478.) Id. at 1245-49.
(479.) Id. at 1247-49.
(480.) See Stephen F. Befort, Labor and Employment Law at the Millennium: A Historical Review and Critical Assessment, 43 B.C. L. Rev. 351, 424-27 (2002) (discussing the Model Emp't Termination Act (Unif. Law Comm'n 1999)).
(481.) See Arnow-Richman, supra note 467, at 1108-12 (discussing the then-pending Working Families Flexibility Act, H.R. 1274, 111th Cong. (2009)). But see Stein et al., supra note 474, at 737 (arguing that employers should be required to provide accommodations whenever necessary for a worker to perform essential job functions).
(482.) See Arnow-Richman, supra note 467, at 1092 (explaining that advocates have not pursued universal accommodation mandates due to employers' cost concerns); Theodore J. St. Antoine, The Making of the Model Employment Termination Act, 69 Wash. L. Rev. 361, 370 (1994) (discussing the philosophy of compromise behind the Model Employment Termination Act); cf. Bagenstos, supra note 219, at 483-84 (arguing that the increased "number of potential lawsuits" and inefficiencies, risks of error, and expenses of federal litigation mitigate against "a universal rule of individualized accommodation").
(483.) Bagenstos, supra note 475, at 2862 ("Since universalists argue that their preferred policies will solve problems that are broader than and different from those solved by targeted policies, it should be no surprise that universalist solutions will not always do as well at solving the problems for which targeted policies are designed.").
(484.) See Samuel R. Bagenstos, "Rational Discrimination," Accommodation, and the Politics of (Disability) Civil Rights, 89 VA. L. Rev. 825, 849-52 (2003) (offering examples of how employment law prohibits rational, cost-effective discrimination).
(485.) See supra notes 237-238 and accompanying text.
(486.) See, e.g., Jacob E. Gersen, Markets and Discrimination, 82 N.Y.U. L. Rev. 689, 700 (2007).
(487.) See, e.g., Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642, 68687 (2001).
(488.) Cf. id. at 690-92 (arguing that antidiscrimination laws create costs for employers by exposing them to liability).
(489.) See, e.g., Befort, supra note 480, at 424, 427-30.
(490.) See Julie C. Suk, Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict, 60 Stan. L. Rev. 73, 75-76 (2007).
(491.) See supra notes 307, 334-335 and accompanying text (giving examples of weight discrimination resulting from weight stigma and stereotypes related to the ineffectiveness of overweight workers).
(492.) See, e.g., Wilson v. Sw. Airlines Co., 517 F. Supp. 292, 301 n.21 (N.D. Tex. 1981) ("[T]he purpose of Title VII to overcome stereotyped thinking about the job abilities of the sexes would be undermined if customer expectations, preferences, and prejudices were allowed to determine the validity of sex discrimination in employment.").
(493.) Clarke, supra note 403, at 1247.
(494.) 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 very doubtful politically").
(495.) Fishkin, supra note 465, at 1438.
(496.) See Nancy Levit, Changing Workforce Demographics and the Future of the Protected Class Approach, 16 Lewis & Clark L. Rev. 463, 483 (2012) (discussing the trajectory of recent expansions of workplace law). But see Bagenstos, supra note 474, at 143 (assessing the success of means-tested welfare versus social security and concluding that "[l]ooking at the history of the American welfare state in general, there seems to be a great deal of evidence to support the notion that broad social insurance programs fare better politically than do more targeted interventions").
(497.) Cf. Fishkin, supra note 70, at 164 (making a similar argument with respect to how "pervasive" and "strict" a limitation on equal opportunity is).
(498.) See, e.g., Fishkin, supra note 70, at 1; Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 Harv. C.R.-C.L. L. Rev. 91, 142-43 (2003); Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749, 1824-25 (1990); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 485-90 (2001). This approach has also been termed the "new structuralism." See Michael J. Zimmer et al., Cases and Materials on Employment Discrimination 221-22 (8th ed. 2013); Schultz, supra, at 1825.
In addition to diagnosing the problem as structural, many of these theorists argue for new structural cures. See Bagenstos, supra note 259, at 17-20 (summarizing reforms proposed by scholars to create employer accountability for workplace structures that contribute to bias); Ford, supra note 8, at 1384 (arguing that "the law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy"). Debates over the merits of these new doctrinal frameworks are beyond the scope of this Article. See, e.g., Bagenstos, supra note 259, at 20-40 (discussing "reasons for skepticism" about the efficacy of certain proposals). This Article's argument is against limiting existing employment discrimination frameworks to immutable traits, even if those existing frameworks may sometimes be thwarted by a judiciary lacking the competence or inclination to enforce them. See id. at 20-26 (describing the limits of existing doctrinal frameworks).
(499.) See, e.g., Sturm, supra note 498, at 488.
(500.) See Schultz, supra note 498, at 1841-43.
(501.) Not all proponents of structural solutions agree that the question of what traits to protect should be determined without respect to immutability. For example, Richard Thompson Ford argues, on pragmatic grounds, that the balance between an employer's prerogatives and an employee's interests "may tip to favor the employer when the employee can avoid the adversity by altering her behavior." Ford, supra note 8, at 1419. This Part argues that the question should be reframed as whether the employer's practice of discriminating on the basis of a "mutable" trait perpetuates systemic bias, not whether the law should protect an employee's interest in engaging in a course of behavior.
(502.) Janet E. Halley, "Like Race" Arguments, in What's Left of Theory?: New Work on the Politics of Literary Theory 40, 51 (Judith Butler et al. eds., 2000).
(503.) This discussion refers to pervasive biases in the present tense, but it is not intended to preclude consideration of the past or future. More precisely, the question is whether a form of bias has the potential to become systemic. This might be determined based on its history. Cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 470 (1985) (Marshall, J., concurring in part and dissenting in part) ("Whenever evolving principles of equality, rooted in the Equal Protection Clause, require that certain classifications be viewed as potentially discriminatory, and when history reveals systemic unequal treatment, more searching judicial inquiry than minimum rationality becomes relevant."). It might also be predicted based on changing norms or technologies. See, e.g., Jessica L. Roberts, The Genetic Information Nondiscrimination Act as an Antidiscrimination Law, 86 Notre Dame L. Rev. 597, 601-11 (2011) (discussing how rules against genetic discrimination are justified to avoid a hypothetical future in which "a genetic underclass" faces social subjugation).
(504.) I do not endeavor to describe the line separating pervasive and idiosyncratic biases with anything approaching mathematical precision, because the difference will necessarily depend on context. No two forms of bias are identical, and no single group's experience of discrimination should set the benchmark for future protection. It might therefore be objected that the criterion of "pervasiveness" creates the same line-drawing problems as the new immutability. See supra Part II.D. Yet a pervasiveness standard is less amenable to "floodgates" arguments because, while every aspect of personality might be said to be central, fewer biases might be said to be widespread.
(505.) See supra note 497 and accompanying text.
(506.) Ford, supra note 8, at 1385; see also, e.g., Fishkin, supra note 70, at 167-68; Bagenstos, supra note 219, at 479.
(507.) Mark Kelman, (Why) Does Gender Equity in College Athletics Entail Gender Equality?, 7 S. Cal. Rev. L. & Women's Stud. 63, 91 (1997).
(508.) Cf. id. ("It is not simply the case that we care less, in designing a legal regime, about the person denied a job for the illegitimate reason that he reminded the employer of the employer's hated stepfather because we believe that person will get another job. It is also the case that the decision not to hire in such a case does not confirm traditional status-based social hierarchies, express the social power of one group over another or contribute to ambivalent self-loathing.").
(509.) Quantitative measures might include, for example, data on pay disparities or occupational segregation, see, e.g., Fifty Years After the Equal Pay Act: Assessing the Past, Taking Stock of the Future, Nat'l Equal Pay Task Force 6-7 (2013), http://www.whitehouse.gov/sites/default /files/equalpay/equal_pay_task_force_progress_report_june_2013_new.pdf [http://perma .cc/W8WA-HP8A] (describing the persistence of pay gaps between men and women and occupational segregation based on sex), or measures of explicit and implicit attitudes and stereotypes, see, e.g., Kristin A. Lane et al., Implicit Social Cognition and Law, 3 Ann. Rev. L. & Soc. Sci. 427, 433-34 tbl.1 (2007) (summarizing data on implicit and explicit attitudes toward and stereotypes regarding various identity traits). Arguments to explain these disparities are also required, as numbers alone will not do the work to persuade judges who "often believe that such patterns reflect real differences in qualifications or voluntary choices of individual workers." Bagenstos, supra note 259, at 39.
(510.) See supra notes 221, 241 and accompanying text.
(511.) See, e.g., Susan Moller Okin, Politics and the Complex Inequalities of Gender, in Pluralism, Justice, and Equality 120, 125 (David Miller & Michael Walzer eds., 1995) (discussing Michael Walzer's concept of "'complex equality,' which requires that inequalities in any one sphere do not spread to others," and applying this concept to women's inequality in the family, which spreads into other social and political spheres).
(512.) See Vicki Schultz, Antidiscrimination Law as Disruption: The Emergence of a New Approach to Understanding and Addressing Discrimination 3 (Mar. 2014) (unpublished manuscript) (on file with author) (describing an approach to antidiscrimination that sees the law's aim as disrupting institutional practices that "(1) pigeonhol[e] individuals into preconceived notions of the groups to which they belong; (2) assign preconceived notions of what it means to be members of those groups; and (3) structur[e] rewards or interactions in ways that tend to reproduce or confirm those presumed group-based differences in the particular setting").
(513.) See supra note 218 and accompanying text.
(514.) See supra notes 219-221 and accompanying text.
(515.) See supra notes 229-241 and accompanying text.
(516.) See supra Parts II.A, II.B, II.C.
(517.) See Schmeiser, supra note 7, at 1518.
(518.) Id. (quoting Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 436 (Conn. 2008)); cf. Samuel A. Marcosson, Constructive Immutability, 3 U. Pa. J. Const. L. 646, 650 (2001) (arguing that an immutable trait should be defined as one with "terms, assumptions, and normative social requirements so deeply ingrained into the members of the society, that it is experienced at the individual level as immutable" and that discrimination based on such traits should be suspect because it signals "broader social disadvantaging of a disfavored group").
(519.) Tanner v. Or. Health Scis. Univ., 971 P.2d 435, 446 (Or. Ct. App. 1998). In Tanner, the court held that a policy denying insurance benefits to same-sex couples violated the Oregon Constitution's guarantee of equal privileges. Id. at 448. This definition of immutability is unusual, as courts have generally considered a history of discrimination to be a separate and distinct factor, apart from immutability. See supra text accompanying note 44.
(520.) See supra note 3 and accompanying text (discussing court opinions defining immutable traits as having to do with fundamental characteristics rather than social practices).
(521.) See supra notes 469-472 and accompanying text. Valid affirmative action plans are also exceptions to liability. See, e.g., United Steelworkers of Am. v. Weber, 443 U.S. 193, 208 (1979) (upholding an affirmative action plan against a Title VII challenge).
(522.) See Bagenstos, supra note 484, at 857-59.
(523.) Whether the expansion of antidiscrimination law to cover new forms of discrimination dilutes those resources and remedies available for more pressing problems is an empirical question. See Clarke, supra note 403, at 1248-49. Dilution may be minimal. Based on her study of state and local appearance discrimination ordinances, Deborah Rhode has argued that these legal rules have the potential to spark social change while generating little in the way of enforcement burdens or political backlash. Deborah Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 113 (2010) (arguing for the expansion of legal prohibitions on appearance discrimination and noting that jurisdictions that have expanded such prohibitions have not been overwhelmed with litigation).
I argue that universal expansion of employment protections is likely to dilute remedies based on prominent proposals for universal rules, which contain diluted means for enforcement or remedies. See supra notes 480-482 and accompanying text. Proposals to add categories such as "weight" to the enumerated lists of prohibited bases for discrimination, or to interpret existing categories to include more forms of discrimination, are not as often accompanied by such large compromises. See supra note 289 and accompanying text (discussing existing weight discrimination prohibitions); supra note 344 and accompanying text (discussing the PDA's amendment of the category of "sex" discrimination to include "pregnancy"); supra note 427 and accompanying text (discussing the EEOC's proposal to include criminal background checks under the familiar rubric of disparate impact law).
(524.) See, e.g., Serena Mayeri, Note, "A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective, 110 Yale L.J. 1045, 1046 (2001) (discussing the "political and legal currency" of analogies between protected groups in civil rights advocacy). Analogies to race may be inescapable. See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 2 (2011) ("The African American quest for civil rights has become so deeply ingrained in American consciousness that it is the yardstick against which all other reform movements are measured."); Halley, supra note 502, at 46 ("'Like race' arguments are so intrinsically woven into American discourses of equal justice that they can never be entirely foregone. Indeed, analogies are probably an inescapable mode of human inquiry and are certainly so deeply ingrained in the logics of American adjudication that any proposal to do without them altogether would be boldly utopian ...."). But see Anna Kirkland, Fat Rights: Dilemmas of Difference and Personhood 155 (2008) (arguing that "like-race" arguments are futile because no other form of discrimination is identical to race discrimination in all respects); Russell K. Robinson, Marriage Equality and Postracialism, 61 UCLA L. Rev. 1010, 1058 (2014) (discussing the flaws of "like race" arguments generally and arguing that "[i]nstead of playing the oppression Olympics, marriage equality advocates should focus on providing detailed, compelling accounts of antigay discrimination, which can stand on their own footing").
(525.) Mayeri, supra note 524, at 1046.
(526.) Civil rights struggles might appropriate lessons from one another without engaging in facile comparisons. See Robinson, supra note 524, at 1058 (discussing "how one can demonstrate a link between civil rights struggles without suggesting that they are generic and identical or, even worse, ranking one above another").
(527.) Cf. supra note 288 and accompanying text.
(528.) See Jennifer Bennett Shinall, Distaste or Disability? Evaluating the Legal Framework for Protecting Obese Workers, 37 Berkeley J. Emp. & Lab. L. (forthcoming 2016) (manuscript at 1) (on file with author) (arguing that "the obesity penalty for women is largely the result of employers keeping obese women (but not obese men) out of" jobs involving "public interaction").
(529.) See Lindsay F. Wiley, Shame, Blame, and the Emerging Law of Obesity Control, 47 U.C. Davis L. Rev. 121, 164-68 (2013) (discussing evidence of the prevalence of stigmatization and stereotypes surrounding obesity).
(530.) See supra text accompanying notes 292-311.
(531.) 10 F.3d 17 (1st Cir. 1993).
(532.) Id. at 24.
(534.) Id. at 28. In a study of U.S. news media reporting on weight, Abigail Saguy found that articles were more likely to "blame individuals for being overweight or obese than for having anorexia or bulimia." Saguy, supra note 292, at 71. Saguy observes connections to race, class, sex, and age, explaining that "fatness is more common among the American poor and minorities" while "anorexia and bulimia are diagnosed most often in middle-class white women and girls." Id. Weight, class, and race may be linked because low-income and predominantly African-American neighborhoods are often "food deserts" without stores selling affordable, healthy foods, or because low-price stores target shoppers with junk food advertising. See, e.g., Bonnie Ghosh-Dastidar et al., Distance to Store, Food Prices, and Obesity in Urban Food Deserts, 47 Am. J. Preventive Med. 587, 587, 593 (2014) (studying 1,372 households in two low-income, majority African American neighborhoods, and finding that shopping at low-price food stores correlated with obesity and that low-price stores more actively marketed junk foods than high-priced stores).
(535.) In a 2014 employment discrimination matter, the Court of Justice of the European Union held that obesity may fall within the definition of disability under the United Nations Convention on the Rights of Persons with Disabilities, clarifying explicitly, "The concept of 'disability' ... does not depend on the extent to which the person may or may not have contributed to the onset of his disability." Case C-354/13, Fag og Arbejde v. Kommunernes Landsforening, 2014 E.C.R. 2106 ^ 56 http://curia.europa.eu/juris/document/document.jsf ?text=&docid=16o935 [http://perma.cc/9HZU-E3PA].
(536.) See, e.g., Joan C. Williams, Keynote Address: Want Gender Equality? Die Childless at Thirty, 27 Women's Rts. L. Rep. 3, 3 (2006) (discussing "[n]ew work by economists [that] documents the central role of motherhood in creating economic vulnerability for women" in the form of an increasing wage gap).
(537.) Brake & Grossman, supra note 351, at 68.
(538.) Id. at 69.
(539.) Stephen J. Rose & Heidi I. Hartmann, Still a Man's Labor Market: The Long-Term Earnings Gap, Inst. for Women's Pol'y Res. 33 (2004), http://www.iwpr.org/pubhcations/pubs /still-a-mans-labor-market-the-long-term-earnings-gap/at_download/file [http://perma.cc /RT9F-KF5M].
(540.) 499 U.S. 187, 190 (1991).
(541.) Id. at 198.
(542.) Id. at 210. The Court qualified this holding with the explanation that it was "not presented with ... a case in which costs would be so prohibitive as to threaten the survival of the employer's business." Id. at 210-11.
(543.) 141 F. Supp. 2d 1266, 1272 (W.D. Wash. 2001).
(544.) Id. at 1272-73.
(545.) Fishkin, supra note 465, at 1462.
(546.) Id. (quoting City of Phila., "Ban the Box" Ordinance Goes into Effect, Wordpress (Jan. 13, 2012), http://www.cityofphiladelphia.wordpress.com/2012/01/13/ban-the-box -ordinance-goes-into-effect [http://perma.cc/7E3Q-WTP4]).
(547.) Fishkin, supra note 70, at 23. Fishkin has coined the term "bottlenecks" to describe structural impediments to equal opportunity, and argued that "ameliorating] severe bottlenecks" should be one of the central purposes of antidiscrimination law. Fishkin, supra note 465, at 1432.
(548.) Fishkin, supra note 465, at 1462-63. Fishkin emphasizes, however, that the "race-based and race-neutral" analyses of this problem are "deeply complementary." Id. at 1463.
(549.) See id. at 1463.
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|Title Annotation:||of personal characteristics in employment discrimination law; III. Applying the Revised Immutability to New Contexts C. Criminal Records through Conclusion, with footnotes, p. 76-102|
|Author:||Clarke, Jessica A.|
|Publication:||Yale Law Journal|
|Date:||Nov 1, 2015|
|Previous Article:||Against immutability.|
|Next Article:||Corporate control and idiosyncratic vision.|