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Page 2 125 Yale L.J. 2, * 5 of 6 DOCUMENTS Copyright (c) 2015 The Yale Law Journal Company, Inc. The Yale Law Journal October, 2015 Yale Law Journal 125 Yale L.J. 2 LENGTH: 43035 words ARTICLE: Against Immutability NAME: JESSICA A. CLARKE BIO: * AUTHOR. 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. HIGHLIGHT: ABSTRACT. Courts often hold that antidiscrimination law protects "immutable" characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law's protection, such as obesity, pregnancy, and criminal records. It argues that the new immutability does not avoid the old version's troublesome judgments about which traits are morally blameworthy and introduces new difficulties by requiring problematic judgments about which traits are important. Ultimately, immutability considerations of both the old and new varieties distract from the aim of employment discrimination law: targeting unreasonable and systemic forms of bias. [*3] TEXT: [*4] INTRODUCTION Why is it illegal to discriminate on the basis of certain traits, like race or sex, but not others, like experience or beauty? One answer that has been offered in the context of the constitutional guarantee of equal protection is that certain human traits are immutable, meaning they were not chosen. This concept has long endured the scholarly criticism that it is "both over-and underinclusive." n1 For example, it is permissible to discriminate on the basis of intelligence, which some say is innate, but not religion, which some say can be changed. In response to the argument that sexual orientation might
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