This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment discrimination laws. Immutability, however, does not explain why other characteristics that are equally unalterable are excluded from the statutory scheme. Thus, I conclude that the employment discrimination laws lack coherence. While they extend even to fringe religions, such as white supremacy, they disregard a variety of traits that are fundamental to identity, including sexual orientation, parental status, and others. A focus on the concept of immutability can shed new light on the achievements and limitations of the anti-discrimination mandates and serve as an impetus to provide more comprehensive protection to American workers.


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

Publication Date


Document Type


Place of Original Publication

William and Mary Law Review

Publication Information

52 Wm. & Mary L. Rev. 1483 (2011)


COinS Sharona Hoffman Faculty Bio