Choice-Based Discrimination
ARTICLE CONTENTS
INTRODUCTION ...............................................................................................................3
I. IDENTIFYING CHOICE-BASED DISCRIMINATION ................................................7
A. Evidence ......................................................................................................................7
B. Explanations ..............................................................................................................21
C. Four Forms of Discrimination ...................................................................................15
II. LEGAL (NON) PROTECTION....................................................................................12
A. Obesity.......................................................................................................................12
B. Sexual Orientation .....................................................................................................12
C. Motherhood ...............................................................................................................32
III. THE APPROPRIATE LEGAL PROTECTION ..........................................................33
A. Immutability ..............................................................................................................35
B. Personhood, Self-Identification, and Intrinsic Value of Traits ..................................37
1. Personhood .............................................................................................................37
2. Self-Identification ..................................................................................................33
3. Intrinsic Value of Traits .........................................................................................40
C. Costly and Beneficial Choices ...................................................................................23
1. Benefits ..................................................................................................................22
2. Costs ......................................................................................................................45
a. Taste Discrimination .........................................................................................45
b. Discrimination on the Basis of Mistaken Stereotypes ......................................22
c. Statistical Discrimination ..................................................................................22
d. Normative Discrimination ................................................................................49
D. Application ................................................................................................................51
1. Motherhood ............................................................................................................51
2. Sexual Orientation .................................................................................................52
1
3. Obesity ...................................................................................................................53
CONCLUSION ..................................................................................................................53
2
ABSTRACT
Choice-based discrimination is a form of discrimination targeted at individuals
with allegedly controllable traits. Prominent examples are the obese, gay men, and
mothers. With choice-based discrimination, it is not only beliefs concerning the traits
themselves that generate the discrimination; rather, perceptions regarding the extent of
choice and controllability of those traits have a significant impact on the level of
discrimination. Antidiscrimination law fails to address this phenomenon and, thus, offers
no normative response to the issues that arise when individuals are discriminated against
due to their choices of allegedly controllable traits. This article considers the desirability
of legal protection against choice-based discrimination and addresses the effects it would
have on the following four groups: The people who opt for the choice of a trait and as a
result are directly discriminated against; the people who consider making the choice of a
trait but refrain from doing so because they do not want to be discriminated against; the
people who interact with trait choosers and as a result may be directly affected by their
choices; and society at large that is affected by harms to the intrinsic value of traits
generated by choice-based discrimination. The main argument put forth is that the more
integral a trait to one’s identity, the more central to one’s self-identification the freedom
to choose it; and the greater the benefit to others from one's choice of that trait, the more
vital to protect individuals who have made this choice against choice-based
discrimination.
INTRODUCTION
Choice-based discrimination is a form of discrimination targeted at individuals
with allegedly controllable traits. Prominent examples are the obese, gay men, and
mothers. With choice-based discrimination, it is not only beliefs concerning the traits
themselves that generate the discrimination; rather, perceptions regarding the extent of
choice and controllability of those traits have a significant impact on the level of
discrimination. As I recently showed in empirical studies,1 the more voluntary a devalued
trait is perceived to be, the greater the discrimination against the individuals who exhibit
that trait. This Article seeks to describe, explain, and normatively evaluate choice-based
1
Tamar Kricheli-Katz, Choice-Based Discrimination and the Motherhood Penalties, 46 LAW & SOC.
REV. 46, 557 (2012) [hereinafter Kricheli-Katz, Motherhood Penalties]; Tamar Kricheli-Katz, ChoiceBased Discrimination: Labor-Force-Type Discrimination Against Gay Men, the Obese, and Mothers 10 J.
EMPIRICAL LEGAL STUD. 670 (2013) [hereinafter Kricheli-Katz, Choice-Based Discrimination Against Gay
Men, the Obese, and Mothers].
3
discrimination, a phenomenon that has yet to been explored by legal scholars and to
propose some legal solutions.2 It focuses on the employment context. Choice-based
discrimination is exemplified by the case of the obese. Employers tend to believe obese
people to be less motivated and lacking in willpower compared to non-obese employees.
Yet at the same time, employers tend to believe that it is inappropriate to express
prejudice against people who have no control over their devalued traits. Thus,
discrimination against the obese is usually stronger when the obesity is perceived as
shaped by conscious lifestyle choices. Similarly, employers who believe homosexuality
to be voluntary rather than biological tend to openly express more prejudice and to
discriminate against gay men. Finally, discrimination against mothers—who are
considered less committed and less competent employees than non-mothers—is generally
stronger when employers perceive motherhood as a choice, a belief that legitimizes for
employers the expression of prejudice that they would otherwise restrain.
The tendency to discriminate more strongly when traits are perceived to be
controllable (and for the purposes of this Article, perceptions matter and not whether the
relevant traits are truly controllable) is probably related to people’s tendency to morally
judge and assign responsibility for undesirable events believed to be within the control of
the person who has experienced the event. When we believe that a certain situation is
controllable and that individual choices have led to unfortunate life circumstances (such
as poverty or disability), we are more likely to view people who suffer these
circumstances as responsible for them and, thus, more likely to judge, reject, and dislike
them and treat them negatively. Yet if we believe a person's situation to be uncontrollable
(like natural disasters), we are more likely not to judge but to feel sympathy for her and
be more willing to assist her. Likewise, employers feel it more acceptable to express
prejudice and penalize employees for their devalued traits when they believe those
characteristics to be controllable. This is why when traits like obesity, homosexuality,
and motherhood are perceived as controllable, the discrimination against the individuals
bearing those traits is stronger.
2
Although the focus of this paper is on discrimination generated by perceptions of choice and
controllability, I do not intend to imply that the traits I use as examples are actually controllable, but rather
only that they are sometimes perceived to be so and that these perceptions generate discrimination against
the people who have these traits.
4
Antidiscrimination law has traditionally focused almost exclusively on immutable
traits that are regarded as non-voluntary and for which responsibility cannot be attributed
to the victims of the discrimination themselves as in the case of gender or race. Despite
recently intensified attempts to prohibit discrimination based on certain allegedly
controllable characteristics (such as weight, sexual orientation, and motherhood), the
focus has been on individual groups rather than the general issues of choice and
responsibility. Legal scholars, policymakers, and activists have thus failed to address
choice-based discrimination as a uniform phenomenon across groups of people with
controllable traits and, consequently, have overlooked the normative questions related to
protecting individuals seen as able to alter their devalued traits.
When considering the desirability of legal protection against choice-based
discrimination, it is crucial to understand that when traits are (at least to some degree)
chosen rather than given, discrimination based on those traits affects people’s choices and
behavior ex-ante. Indeed, some people may refrain from making certain choices of traits
– like the choice of becoming a mother- because of the price they might have to pay due
to the anticipated discrimination. Thus, harms are generated not only to the
discriminated-against person but also to all those people who refrain from making a
choice of a trait.
The main argument put forth in this article is that lawmakers must take into
account the degree of harm to one’s personhood and self-identification and to the
intrinsic value of the trait generated by choice-based discrimination, when considering
whether to protect individuals from it. Some traits are strongly connected with who we
are and are constitutive of identity. When discrimination is directed against such intrinsic
traits, it violates our personhood. Whereas some of the traits that are fundamental to our
personhood, like gender and race, are less controllable, others are more so. With
immutable traits that are fundamental to our identity, there is the added harm that is
generated by the inability to alter the trait and avoid discrimination. Thus, if it were only
these harms to one’s personhood being considered, the harm associated with immutable
traits would seem to be greater than the harm to mutable traits. Nonetheless,
discrimination against mutable traits that are fundamental to our identity involves an
5
additional harm as well, namely, its constraining effect on self-identification processes
and its transformation of the intrinsic value of the discriminated-against trait;
When discriminated-against traits that are integral to our identity are also
voluntary, the victims suffer not only from harm to their personhood but also from an
infringement on their self-identification, in that their choices and capacity to express
themselves in regard to fundamental aspects of their identity are limited. Moreover,
discrimination based on chosen traits that are constitutive to one's identity transforms the
intrinsic value of the trait, in that it forces people considering choosing this trait to factor
in the emotional and monetary costs associated with the discrimination. As a result,
choices constitutive of identity are evaluated on the same scale as the potential costs of
being discriminated against. This process, even if it culminates in favor of the trait,
harms its intrinsic value.
When gay men are discriminated against, for example, not only are they put at a
disadvantage compared to heterosexual men, but their personhood is impaired, because
one's sexual identity is a fundamental aspect of identity. Moreover, their selfidentification is harmed, regardless of the choices they eventually make, because
potentially penalizing them for being gay through discrimination limits their freedom to
express themselves with respect to their sexual orientation. In addition, discrimination
forces them to consider the humiliation and sense of inferiority and shame that could
ensue should they choose a same-sex partner and attaches an occupational price tag to
being gay, in terms of wages, hiring, and promotion. As a result, the intrinsic value of
loving relationships and sexual preferences is transformed and instead perceived in terms
of the costs deriving from discrimination.
In the same way, discrimination against mothers both disadvantages them relative
to non-mothers as well as harms women’s personhood in general because one’s maternal
status is an integral part of identity. In addition, discrimination against mothers impairs
women’s self-identification by limiting their freedom to express themselves through
motherhood. Finally, the intrinsic value of motherhood is harmed when it is evaluated in
light of the costs of discrimination. In both these types of choice-based discrimination as
well as other types, the more restrictive the discrimination, the greater the harm to selfidentification and the intrinsic value of the particular traits.
6
The level of control associated with a trait directly impacts the extent of potential
harm to self-identification from discrimination. Discrimination can limit people’s choices
only to the extent to which they have a choice. Thus, the more non-voluntary a trait, as
opposed to chosen, the less discrimination will limit self-identification. This does not
imply, however, that when traits are voluntary, the harms deriving from discrimination
are necessarily greater than when traits are not controllable. When discriminated-against
traits are immutable, additional harm may be caused to the victims due to their incapacity
to alter those attributes. With this type of harm, the less voluntary a trait, the greater the
harm caused by discrimination. The argument being made here, then, is merely that the
more voluntary traits are perceived to be, the greater the harm caused by discrimination
to the personhood and self-identification of those who bear those traits.
Some trait choices entail costs and benefits to people other than the person opting
for the trait. When a woman chooses to take care of her dependent children, for example,
other people – the child and others in society who benefit from the public good generated
by children and parental investment in them - also benefit from her choice; when a person
decides to smoke, other people, such as those who inhale the second-hand smoke, suffer
as well. When discrimination is directed at people who make certain trait choices, it
discourages others from making the same choices. People who would have chosen to
become mothers or smokers, for instance, may refrain from doing so because of the
associated costs. Since these choices affect the welfare of people other than the person
making the choice, choice-based discrimination, and its prohibition, bear consequences
for the welfare of those making the relevant choices but also for the welfare of those who
are impacted by the choices. Thus, the costs and benefits of these choices, not only to the
person making the choice but also others, must be taken into account when weighing the
prohibition of choice-based discrimination. Therefore, the effects of the prohibition of
choice-based discrimination are assessed in this article in respect to the following four
groups: The people who opt for the choice of a trait and as a result are directly
discriminated against; the people who consider making the choice of a trait but refrain
from doing so because they do not want to be discriminated against; people, like
dependent children or employers, who interact with trait choosers and as a result may be
7
directly affected by their choices; and society at large that is affected by harms to the
intrinsic value of traits generated by choice-based discrimination.
It follows, that the more integral a trait to one’s identity, the more central to one’s
self-identification the freedom to choose it; and the greater the benefit to others from
one's choice of that trait, the more vital to protect individuals who have made this choice
against choice-based discrimination. Antidiscrimination law however, fails to address the
phenomenon of choice-based discrimination and, thus, offers no normative response to
the issues that arise when individuals are discriminated against due to their choices of
allegedly controllable traits.
The article proceeds as follows. Part I presents the general phenomenon of
choice-based discrimination in the labor-force. Part II then reviews how labor-force
discrimination based on motherhood, sexual orientation, and weight is addressed under
current civil rights law in the U.S. In Part III, the impact on personhood, selfidentification processes and the intrinsic value of traits is discussed and its application in
these three contexts, while Part IV considers the costs and benefits attaching to the choice
of certain traits. The article concludes with a summary of the criteria for determining
which groups ought to be protected from choice-based discrimination and calls for
extending legal protection to mothers and gay men and women from choice-based
discrimination in the labor-force.
I. IDENTIFYING CHOICE-BASED DISCRIMINATION
Choice-based discrimination is a form of discrimination that targets individuals
with allegedly controllable traits. It is generated not only by beliefs concerning the traits
themselves but also by perceptions of the extent to which they are chosen. The more
voluntary a trait is perceived to be, the greater the discrimination against individuals who
exhibit that trait. Below, I present evidence of choice-based discrimination particularly in
the employment context and explanations for its occurrence. I then consider the
differences across three groups of people who are the prominent targets of choice-based
discrimination: the obese, gay men, and mothers.
A.
Evidence
8
In a recent empirical study, I demonstrated that perceptions of trait choice and
controllability generate not only moral judgments and emotions but also discrimination:3
people tend to discriminate more when traits are perceived to be controllable. For
example, gay men not only elicit more negative emotions are also discriminated against
more when homosexuality is perceived to be a lifestyle choice rather than a biologically
based trait. Similarly, obese individuals are not only disliked more but also discriminated
against more when obesity is believed to be the product of choices they make rather than
biologically based.
In the first part of my study,4 I conducted a hiring experiment in a highly
controlled setting, to produce evidence on choice-based discrimination against obese
men, gay men, and mothers. I tested only for choice-based discrimination against mothers
and not against all parents, because previous studies have shown that whereas mothers
are disadvantaged in the labor-force (compared to non-mothers), fathers are advantaged
(compared to non-fathers).5 I tested only for choice-based discrimination against gay
men, because research suggests that the wages of lesbians are higher than the wages of
their heterosexual peers.6 Lastly, I tested only for choice-based discrimination against
obese men.
Ideas about choice and control were activated for some of the study participants,
with the claim that homosexuality, obesity, and motherhood are choices, while the claim
that these traits are not choices was activated for other participants.7 At a later stage, the
3
Kricheli-Katz, Motherhood Penalties, supra note 1; Kricheli-Katz, Choice-Based Discrimination Against
Gay Men, the Obese, and Mothers, supra note 1.
4
Kricheli-Katz, Choice-Based Discrimination Against Gay Men, the Obese, and Mothers, supra note 1.
5
Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J.
SOC. 1297 (2007) (showing that employers actually discriminate against mothers but not against fathers).
6
Peplau, Letitia A., and Adam Fingerhu, The Paradox of the Lesbian Worker, 60 Journal of Social Issues
719 (2004).
7
Participants were given an SAT-type reading and comprehension essay, which compellingly presented
either a "theory of choice" or a "theory of constraints." The "theory of choice" emphasized the increasing
number of choices and extent of freedom people have in modern society and argued that choices play a
significant role in determining the outcomes of people’s lives. The essay referred to specific instances of
life choices, including parenthood, obesity, and homosexuality. In a similar fashion, the "theory of
constraints" essay emphasized the lack of choice people have in life today and the enormous constraints
they face. It discussed the limitations that social norms, biology, wealth, talent, and luck impose on people's
options and the decisions they make and offered specific examples of such constraints, including in the
contexts of motherhood, obesity, and homosexuality. Both essays described in detail extensive research
purporting to document whichever of the two theories being discussed. The manipulations were expected to
9
participants were asked to make hiring decisions and salary recommendations for two
fictitious, equally qualified, job applicants, who diverged solely in sexual orientation,
parental status, or weight. Specifically, one group of participants had to choose between
an obese male applicant and a man of average weight; a second group was presented with
a heterosexual male applicant and a gay male applicant; and a third group was presented
with a non-mother applicant and an applicant who is a mother. Each group included some
participants who were exposed in the first stage of the experiment to the claim that the
three traits are choices and others who were exposed to the claim that these traits are not
choices. Strong evidence emerged from the results of a causal relationship between
perceptions of choice in these traits and labor-force discrimination against obese men,
gay men, and mothers. When the traits were presented as voluntary, the obese man, gay
man, and mother were all penalized relative to their equally qualified counterparts in
terms of hiring, salary recommendations, and competence evaluation. When the traits
were presented as non-voluntary, the obese man, gay man, and mother were at an
advantage relative to their counterparts.8
The second part of the study was a quantitative analysis of the wage differences
between mothers and non-mothers.9 The analysis built on recent work in sociology and
economics documenting substantial wage penalties imposed on mothers10 and has
activate the particular theory presented to the participants. Participants were then required to respond to a
short list of questions (in the form of a "reading comprehension test") that were designed to check the
manipulation and to assess how much each subject understood the argument and agreed with it.
8
A possible explanation for participants’ tendency to favor the low-status applicants when traits were
presented as non-voluntary is the sympathy people tend to feel toward individuals in undesirable
situations that are beyond their control. Another possible explanation is related to people's tendency to
hide their prejudice in situations where it is not legitimate to express it. Melvin L. Snyder et al.,
Avoidance of the Handicapped: An Attributional Ambiguity Analysis , 37 J. PERS. & SOC. PSYCHOL.
2297 (1979); C. Daniel Batson et al., Religious Orientation and Overt versus Covert Racial
Prejudice, 50 J. PERS. & SOC. PSYCHOL. 175 (1986). Thus, it is possible that when traits were presented
as non-voluntary, participants felt it inappropriate to discriminate against the low-status applicant, and in
order to signal that they are unprejudiced they favored the low-status applicant.
9
Kricheli-Katz, Motherhood Penalties, supra note 1.
10
Deborah J. Anderson, Melissa Binder & Kate Krause, The Motherhood Wage Penalty: Which Mothers
Pay It and Why?, 92 AM. ECON. REV. 354 (2002) (arguing that high-skilled white women experience the
largest motherhood wage penalties); Michelle J. Budig & Paula England, The Wage Penalty for
Motherhood, 66 AM. SOC. REV. 204 (2001) (showing a wage penalty for motherhood of approximately 5%
per child among young American women); Heather Joshi, Pierella Paci & Jane Waldfogel, The Wages of
Motherhood: Better or Worse?, 23 CAMBRIDGE J. ECON. 543 (1999) (arguing that among full-time
employees, women who suspended their employment at childbirth were subsequently paid less than nonmothers); Jane Waldfogel, The Effect of Children on Women's Wages, 62 AM. SOC. REV. 209 (1997)
(claiming that even after controlling for part-time employment, a negative effect of children on women's
10
suggested that discrimination plays an important role in producing these penalties.11 I
showed that the degree to which motherhood is conceptualized as a choice affects the
wage penalties associated with making this choice. Data from the 1988-2004 Current
Population Survey and hierarchical linear models were used to explore this issue.12 This
statistical procedure allowed for an estimation of the effects of state and state-year
characteristics on individual-level wages, while controlling for variations at all three
levels.13
Three measures were used in the analysis as proxies for the perception of
motherhood as a choice in a given state in a given year. The first measure was the
percentage of women who are not mothers, as this reflects attitudes regarding
motherhood being a choice for women. The greater the proportion of non-mothers, the
stronger the perception of motherhood as a choice. The second and third measures were
the rate of legal abortions and the existence of state funding for abortions for low-income
women, respectively. Pro-choice attitudes and policies are justified in the U.S. by the
notion that women should have the right to choose motherhood. Thus, higher abortion
rates and liberal abortion funding policies reflect a social attitude and perception of
women as having control over their reproductive decisions. In other words, higher
abortion rates and the availability of state funding for abortions for low-income women
are indicators of a cultural climate in which motherhood is perceived as a woman’s
choice.
The analysis exposed state-by-state variations in the wage penalties associated
with motherhood. Namely, in states with higher percentages of non-mothers, more
abortions per capita, and liberal abortion funding policies, there was more discrimination
pay remains); Jane Waldfogel, Understanding the "Family Gap" in Pay for Women with Children, 12 J.
ECON. PERSP. 137 (1997) (discussing the "family gap" in pay between mothers and nonmothers and the
family policies that may be an effective remedy for this family gap).
11
Correll, Benard & Paik, supra note 5.
12
Hierarchical linear models are used to estimate parameters that vary at more than one level. Here, the unit
of analysis was the individual woman, whose wages were the dependent variable. The second level was the
state-year in which the individual woman resided (e.g., Alabama in 1992). The third level was the state
level.
13
ANTHONY S. BRYK & STEPHEN W. RAUDENBUSH, HIERARCHICAL LINEAR MODELS: APPLICATIONS AND
DATA ANALYSIS METHODS (1992).
11
against mothers. What emerged, then, is that the more motherhood is perceived as a
choice for women, the greater the wage penalties on mothers.14
In the third, qualitative part of the study, employers in the San Francisco Bay
Area were interviewed to investigate how they conceptualize the relation between choice,
responsibility, and discrimination. All respondents expressed a very clear moral intuition:
when employees have chosen traits, it is appropriate for employers to take people's
choices of traits into account when making employment-related decisions. The
respondents also expressed sympathy for people who did not (and cannot) choose their
devalued traits and explained that, in such cases, employees should not be penalized for
their circumstances.
Many of the interviewed employers raised by themselves sexual orientation,
weight, and motherhood as examples of traits that are lifestyle choices that rightfully
generate employment outcomes. When asked to elaborate on why they believe this to be
so, most referred to notions of responsibility. Many explained that they respect people’s
lifestyle choices in general, but at the same time, believe that people deserve to bear the
consequences that follow. It is, therefore, acceptable, in their view, for employers to take
apparently voluntary characteristics into account when making employment-related
decisions.15
Combined, the three stages of the study document the phenomenon of choicebased discrimination in the labor-force and show strong evidence of a causal relationship
between perceptions of voluntariness of traits and employment discrimination. The
findings show that people tend to discriminate more when traits are considered to be
mutable. While discrimination directed at obesity,16 sexual orientation,17 and
14
Note that premiums for motherhood were not observed, even in states that were more conservative in
their abortion policies, had a lower percentage of non-mothers, and had fewer abortions per capita
compared to other states. This is because even in these states, motherhood is perceived to be voluntary at
least to some degree.
15
Tamar Kricheli Katz, [unpublished manuscript].
16
See, e.g., Rebecca M. Puhl & Chelsea A. Heuer, The Stigma of Obesity: A Review and Update, 17
OBESITY 941 (2009) (providing an update of scientific evidence on weight bias and stigmatization toward
overweight and obese adults, in important domains of living); John H. Cawley, The Labor Market Impact
of Obesity, in OBESITY, BUSINESS AND PUBLIC POLICY 76 (Zoltan J. Acs & Alan Lyles eds., 2007); J. ERIC
OLIVER, FAT POLITICS: THE REAL STORY BEHIND AMERICA’S OBESITY EPIDEMIC 80 (2006) (showing that
the real concern with obesity is fueled by social prejudice, bureaucratic politics, and industry profit rather
than by scientific fact about health); Charles L. Baum II & William F. Ford, The Wage Effects of Obesity: A
Longitudinal Study, 13 HEALTH ECON. 885, 896–98 (2004) (arguing that obese workers experience
12
motherhood18 has been documented in numerous other studies, my study's unique finding
was the impact of the mutability of a trait on the level of discrimination on the basis of
that trait.
B.
Explanations
The tendency to discriminate more when a trait is perceived to be voluntary is
likely related to commonly-held moral views regarding choice. Choice—alongside
individualism, agency, and control—is a core moral value in contemporary American
society19 and has been institutionalized and reinforced by social and political institutions,
persistent wage penalties and suggesting that job discrimination is one of the reasons for the wage
penalties); J.D. Latner, K.S. O’Brien, L.E. Durso, L.A. Brinkman & T. MacDonald, Weighing Obesity
Stigma: The Relative Strength of Different Forms of Bias, 32 INT’L J. OBESITY 1145, 1150 (2008)
(discussing the pervasive discrimination against obese individuals and arguing that weight bias is
significantly stronger than bias against gays and Muslims); Lenny R. Vartanian, Disgust and Perceived
Control in Attitudes Toward Obese People, 34 INT’L J. OBESITY 1302 (2010) (examining the role of disgust
in negative attitudes toward obese people).
17
See, e.g., Christopher S. Carpenter, Revisiting the Income Penalty for Behaviorally Gay Men: Evidence
from NHANES III, 14 LAB. ECON. 25 (2007) (finding that same-sex behaving men experience a statistically
and economically significant income penalty in the range of 23% to 30%); M.V. Lee Badgett, The Wage
Effects of Sexual Orientation Discrimination, 48 INDUS. & LAB. REL. REV. 726, 729 (1995) (finding that
gay and bisexual male workers earned from 11% to 27% less than heterosexual male workers); Nathan
Berg & Donald Lien, Measuring the Effect of Sexual Orientation on Income: Evidence of Discrimination?,
20 CONTEMP. ECON. POL’Y 394 (2002) (claiming that nonheterosexual men earn 22% less than
heterosexual men, while nonheterosexual women earn 30% more than heterosexual women); Dan A. Black,
Hoda R. Makar, Seth G. Sanders & Lowell J. Taylor, The Earnings Effects of Sexual Orientation, 56
INDUS. & LAB. REL. REV. 449 (2003) (arguing that gay men earn between 14% and 16% less than
heterosexual men and lesbian women earn between 20% to 34% more than heterosexual women); John
Blandford, The Nexus of Sexual Orientation and Gender in the Determination of Earnings, 56 INDUS. &
LAB. REL. REV. 622 (2003) (gay and bisexual men experience a 30%-32% income disadvantage relative to
heterosexual peers, while lesbian and bisexual women enjoy a wage premium of 17%-23%). See also LEE
BADGETT ET AL., BIAS IN THE WORKPLACE: CONSISTENT EVIDENCE OF SEXUAL ORIENTATION AND GENDER
IDENTITY DISCRIMINATION (2007) (demonstrating that sexual orientation-based and gender identity
discrimination is very common in workplaces).
18
See, e.g., Correll, Benard & Paik, supra note 5; Budig & England, supra note 10; Anderson, Binder &
Krause, supra note 10; Waldfogel, supra note 10.
19
Sheena S. Iyengar & Mark R. Lepper, Rethinking the Value of Choice: A Cultural Perspective on
Intrinsic Motivation, 76 J. PERS. & SOC. PSYCHOL. 349 (1999) (showing that personal choice generally
enhances motivation more for American independent selves than for Asian interdependent selves); Hazel
Rose Markus & Barry Schwartz, Does Choice Mean Freedom and Well-Being?, 37 J. CONSUMER RES. 344
(2010) (claiming that Americans live in a political, social, and historical context that values personal
freedom and choice above all else); Richard M. Ryan & Edward L. Deci, Self-Determination Theory and
the Facilitation of Intrinsic Motivation, Social Development, and Weil-Being, 55 AM. PSYCHOL. 68, 68-78
(2000) (finding that there are three innate psychological needs—namely, competence, autonomy, and
relatedness—which, when satisfied ,yield enhanced self-motivation and mental health and, when thwarted,
lead to diminished motivation and well-being); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (
(1990) (1832) (analyzing why republican representative democracy has succeeded in the United States
13
social interactions, and the media.20 People are perceived to be morally accountable for
the choices they make and there is a moral social expectation that they will bear the costs.
I argue in this section that when traits are perceived as voluntarily acquired, these moral
views legitimize discrimination against those bearing the traits.
Research has shown that people tend to make moral judgments about undesirable
events that are seen to be within the control of the victims and assign the latter
responsibility for their occurrence.21 In other words, if we believe that certain unfortunate
circumstances are controllable and that voluntary choices have led to their creation, we
are more likely to view the victims of those circumstances as responsible for them and
more likely to judge, reject, and dislike those victims and treat them negatively.22 If we
believe the unfortunate circumstances to be beyond one's control, however, we are more
likely not to attribute any responsibility to the victims and, therefore, more likely not to
judge them and, instead, to feel sympathy and a willingness to assist them. Therefore,
whereas victims of natural disasters (such as fires, droughts, floods, or hurricanes) evoke
compassion, victims of situations that are perceived as more controllable (such as AIDS,
divorce, or alcoholism) evoke anger and dislike.23
Similarly, apparently uncontrollable undesirable traits evoke sympathy, while
apparently voluntary traits evoke anger and dislike. Thus, for example, a dislike of
overweight people is strongly associated with the belief that being overweight is
while failing in so many other places); James A. Morone, Enemies of the People: The Moral Dimension to
Public Health, 22 J. HEALTH POL. POL'Y & L. 993 (1997) (exploring the effects of morality on health policy
in America).
20
Hazel Rose Markus & Shinobu Kitayama, Models of Agency: Sociocultural Diversity in the
Construction of Action, In CROSS CULTURAL DIFFERENCES IN PERSPECTIVES ON THE SELF 1 (Virginia
Murphy-Berman & John J. Berman eds., 2003) (arguing that positive implications of autonomy, agency, and
the freedom to choose are the result of socio-historical processes in which beliefs about choice,
individualism, and control have been institutionalized and reinforced by social and political institutions,
social interactions, and the media).
21
See Christopher Schmitt & Candance Clark, Sympathy, in HANDBOOK OF THE SOCIOLOGY OF EMOTIONS
467 (Jan E. Stets & Jonathan H. Turner eds., 2007); BERNARD WEINER, JUDGMENTS OF RESPONSIBILITY: A
FOUNDATION FOR A THEORY OF SOCIAL CONDUCT (1995); Udo Rudolph, Scott Roesch, Tobias Greitemeyer
& Bernard Weiner, A Meta-Analytic Review of Help Giving and Aggression from an Attributional
Perspective: Contributions to a General Theory of Motivation, 18 COGNITION & EMOTION 815 (2004)
(showing that judgments of responsibility determine the emotional reactions of anger and sympathy and
these emotional reactions, in turn, directly influence help giving and aggression); Bernard Weiner,
Raymond P. Perry & Jamie Magnusson, An Attributional Analysis of Reactions to Stigmas, 55 J. PERS. &
SOC. PSYCHOL. 738 (1988) (showing that mental-behavioral stigmas were perceived as onset-controllable
and elicited little pity, much anger, and judgments about neglect).
22
WEINER, supra note 21; Schmitt & Clark, supra note 21; Weiner, Perry & Magnusson, supra note 21.
23
WEINER, supra note 21; Schmitt & Clark, supra note 21; Weiner, Perry & Magnusson, supra note 21.
14
controllable and the result of a lack of willpower.24 In addition, the more obesity is
perceived as controllable, the more people tend to express negative emotions towards
obese people. Likewise, a dislike of gay people is associated with the belief/perception
that homosexuality is a lifestyle choice, and people tend to express more negative
attitudes towards gay men under this perception.25
The attribution of responsibility and moral judgments based on choices people
make can explain the tendency to discriminate more when traits are seen as controllable
and may also serve to legitimize an expression of prejudice that would otherwise be
suppressed by the person making these judgments. To understand why the attribution of
responsibility and moral judgment may legitimize the expression of discrimination, it is
necessary to understand the processes that generate discrimination. Psychologists Chris
Crandall and Amy Eshleman have offered insight into the process of the expression of
discrimination,26 using a two-stage cognitive model. This model, which they call a
"suppression-justification model," represents a process that results either in the
expression or suppression of discrimination. In this model, discrimination is generated or not - as a result of a two-stage cognitive process. In the first stage, an automatic
genuine primary prejudice is generated so that individuals are automatically and
negatively evaluated based on their membership in a certain social group. In the second
stage, the expression of the genuine prejudice in the form of discriminatory behavior is
either suppressed or justified by beliefs, values, and social norms. Prejudice will not be
expressed in the form of discriminatory behavior when beliefs, values, and social norms
indicate the inappropriateness of such expressions, and vice versa: it will manifest as
discriminatory behavior when beliefs, values, and social norms justify this.
24
Chris S. Crandall, Prejudice Against Fat People: Ideology and Self-interest, 66 J. PERS. & SOC.
PSYCHOL. 882 (1994) (testing the notion that antipathy toward fat people is part of an "ideology of blame");
Weiner, Perry & Magnusson, supra note 21; Schmitt & Clark, supra note 21.
25
Joseph E. Aguero, Laura Bloch & Donn Byrne, The Relationships Among Sexual Beliefs, Attitudes,
Experience, and Homophobia, 10 J. HOMOSEXUALITY 95 (1984) (finding that the greatest dislike toward
homosexuals arose in those subjects who responded with negative affect and believe that homosexuality is
a learned problem); Bernard E. Whitley, The Relationship of Heterosexuals' Attributions for the Causes of
Homosexuality to Attitudes Toward Lesbians and Gay Men, 16 PERS. & SOC. PSYCHOL. BULL. 369 (1990)
(arguing that heterosexuals' attitudes toward persons bearing the social stigma of homosexuality will be
more negative when homosexuality is attributed to controllable rather than uncontrollable causes).
26
Chris S. Crandall & Amy Eshleman, A Justification-Suppression Model of the Expression and
Experience of Prejudice, 129 PSYCHOL. BULL. 414 (2003).
15
This understanding of the discrimination-generating process clarifies how
perceptions of voluntariness can legitimize discrimination. People might feel that it is
appropriate to express their genuine automatic prejudice against individuals with
allegedly controllable devalued traits and discriminate against them, since they believe
that it is legitimate to express prejudice against people who can change their traits. In
other words, expressing otherwise suppressed prejudice against individuals with allegedly
voluntary traits—like the obese, gay men, and mothers—could be viewed as appropriate
because of the moral beliefs regarding controllable conditions. In fact, research in social
psychology suggests that people tend to view the expression of prejudice towards
controllable devalued traits as more legitimate than expressing prejudice regarding an
uncontrollable devalued traits.27
The following example in the context of employment can illustrate how beliefs
about trait choice can legitimize discrimination. An employer might believe that obese
workers are generally less motivated, less committed, and less productive than other
workers. But she might also be influenced by the social and moral norms regarding the
inappropriateness of expressing prejudice in general and, therefore, avoid discriminating
against her obese workers. If, however, the employer perceives obesity to be voluntary
and the result of conscious lifestyle choices, she may feel more comfortable with
discriminating against obese employees, who, she believes, could have prevented their
condition.
Similarly, an employer who believes that mothers are, on average, less committed
and less productive than non-mothers might, nonetheless, refrain from discriminating
against employees who are mothers, if she believes motherhood is not truly a choice for
women. However, if she views motherhood to be a choice women make, she will have a
normative justification for expressing prejudice against employees who are mothers.
C.
Four Forms of Discrimination
27
Miriam Rodin, Judy Price, Francisco Sanchez & Sharel McElligot, Derogation, Exclusion, and Unfair
Treatment of Persons with Social Flaws: Controllability of Stigma and the Attribution of Prejudice, 15
PERS. & SOC. PSYCHOL. BULL. 439 (1989) (arguing that more prejudice was attributed to people who
behaved in a discriminatory way toward persons whose flaws were beyond their control).
16
Thus far, I have referred to the commonalities in the choice-based discrimination
of the obese, gay men, and mothers, without referring to the distinctions across these
three groups and the implications for the forms of discrimination they may experience. I
now turn to a description and evaluation of these differences.
Four forms of discrimination have been identified in the theoretical and empirical
literature on discrimination. The one form is taste discrimination which occurs when
disparities are the result of discriminators’ tastes—their likes and dislikes of certain social
groups. With this form of discrimination, the discriminator is willing to forgo material
gain in order to cater to her tastes. Two other forms of discrimination are statistical
discrimination and mistaken-stereotypes discrimination, and both arise due to cultural
beliefs about social groups.28 These beliefs tend to center on ability and performance,
with members of certain social groups perceived to be more able or to perform better than
members of other groups in particular contexts. When the cultural beliefs are statistically
grounded, people who take these statistics into account (without testing them in the
individual case) engage in statistical discrimination. When cultural beliefs are
statistically erroneous, people who take the statistics into account practice mistaken
stereotypes discrimination. The forth form of discrimination is normative discrimination
which occurs when people act in accordance with their normative evaluations and moral
judgments. With this form of discrimination, people are discriminated against not
because it is perceived to be costly to interact with them, but because their actions are
viewed by others as normatively wrong. In many cases, social groups experience more
than one form of discrimination, and disentangling empirically the four forms is very
difficult.
On this background, I proceed to discuss the differences in the discrimination of
mothers, obese men, and gay men in the workplace. As I will elaborate, the
discrimination mothers suffer from tends to be based on cultural beliefs about their
productivity and commitment to their jobs; the obese suffer principally from taste
28
By the term cultural beliefs, I refer to learned, sometimes unconscious, shared beliefs about the respect,
social esteem, and honor associated with types or categories of people compared to other types or
categories of people. In the U.S., beliefs about social esteem are also associated with beliefs about
differences in ability and competence in the tasks that are valued by society. Cecilia L. Ridgeway, Status
Construction Theory, in CONTEMPORARY SOCIAL PSYCHOLOGICAL THEORIES 301 (Peter J. Burke ed.,
2006); Joseph Berger, Bernard P. Cohen & Morris Zelditch, Jr., Status Characteristics and Social
Interaction, 37 AM. SOC. ASS'N 241 (1972).
17
discrimination and discrimination based on mistaken stereotypes; and gay men suffer
mostly from taste discrimination.
Mothers are not generally regarded as inferior to non-mothers. They are perceived
as nice, warm, moral, and extremely committed to their children; people tend to like
them.29 They thus suffer not from taste discrimination but from discrimination that is
generated by cultural beliefs in the specific context of employment. Several studies have
shown that the cultural views of a “good mother” tend to be opposition to the cultural
views of an “ideal worker.”30 Whereas people expect good mothers to be primarily
devoted to their dependent children, ideal workers are expected to be primarily available
for and committed to their work and are, therefore, without care responsibilities.31 This
contradiction in expectations causes mothers to be evaluated as less productive and less
competent workers32 and, accordingly, to be penalized in terms of hiring, wages, and
promotion.33
Is this discrimination statistical or based on mistaken-stereotypes? It is difficult to
assess whether the actual productivity and availability of individual mothers are affected
by their caregiving role in the home. Whereas differences in how employers perceive the
productivity and commitment of mothers compared to non-mothers in the labor-force
29
Victor J. Callan, Perceptions of Parents, the Voluntarily and Involuntarily Childless: A Multidimensional
Scaling Analysis, 47 J. MARRIAGE & FAM. 1045 (1985) (arguing that parents of two or more children are
judged most favorably); Lawrence H. Ganong, Marilyn Coleman & Dennis Mapes, A Meta-Analytic
Review of Family Structure Stereotypes, 52 J. MARRIAGE & FAM. 287 (1990) (claiming that traditional
nuclear family status is perceived more positively than other family structure statuses); Karla A. Mueller &
Janice D. Yoder, Gendered Norms for Family Size, Employment, and Occupation: Are There Personal
Costs for Violating Them?, 36 SEX ROLES 207 (1997) (discussing the positive evaluation of mothers). Note,
however, that studies on gender have shown that stereotypes about men being viewed as less communal
but with more powerful traits than women are correlated with gender inequality. See Peter Glick et al., Bad
but Bold: Ambivalent Attitudes Toward Men Predict Gender Inequality in 16 Nations, 86 J. PERS. & SOC.
PSYCHOL. 713 (2004) (indicating that men are viewed as having less positively valenced but more powerful
traits than women).
30
Correll, Benard & Paik, supra note 5; Cecilia L. Ridgeway & Shelley J. Correll, Motherhood as a Status
Characteristic, 60 J. SOC. ISSUES 683 (2004) (arguing that when motherhood becomes a salient descriptor
of a worker, it downwardly biases the evaluations of her job competence and suitability for positions of
authority); MARY BLAIR -L OY, COMPETING DEVOTIONS: CAREER AND FAMILY AMONG WOMEN
EXECUTIVES (2003); SHARON HAYS, CULTURAL CONTRADICTIONS OF MOTHERHOOD (1996).
31
Joan Acker, Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations, 4 GENDER & SOC’Y 139
(1990) (arguing that organizational structure is not gender neutral and that men's bodies, sexuality, and
relationships to procreation and paid work are subsumed in the image of the worker).
32
JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT
101–10 (2000); Correll, Benard & Paik, supra note 5; Ridgeway & Correll, supra note 30.
33
Correll, Benard & Paik, supra note 5.
18
have been documented by social scientists,34 divergences in the actual levels of
performance between the two groups have only been presumed.35 Because it is virtually
impossible—in a large-scale analysis—to empirically assess the actual productivity of
individual women, it is difficult to determine what portion of the penalties associated
with motherhood is generated by mistaken stereotypes and what part portion, if any, by
an actual decrease in productivity.36 Experimental studies do suggest that at least some of
the differences in employment outcomes for mothers and non-mothers are the result of
mistaken stereotyping of mothers and not due to actual differences in productivity
between the two groups. In hiring experiments in which the performance of mothers was
held constant by design, mothers were still at a disadvantage in respect to hiring and
salary recommendations compared with non-mothers.37
Recall that if employers, when making decisions regarding individual women,
took into account the average divergence in productivity and commitment to paid work
between mothers and non-mothers (assuming that one existed), they would be engaging
in statistical discrimination.38 This would create a wage gap between mothers and nonmothers that corresponds to the actual average differences in productivity between the
two groups. However, this would also means that individual women who are atypical of
their group would be paid incommensurately with their actual performance. I will discuss
the normative implications of such statistical discrimination in the case of mothers in the
normative parts of this article.
Whereas mothers suffer mostly from discrimination based on cultural beliefs
regarding their job productivity and commitment, the obese suffer from additional forms
of discrimination, in various areas of life, which are generated both by differences in taste
and by cultural beliefs. People tend to react with dislike and disgust toward the obese.39
HAYS, supra note 30; Correll, Benard & Paik, supra note 5.
Budig & England, supra note 10.
36
Id.
37
Correll, Benard & Paik, supra note 5.
38
Budig & England, supra note 10.
39
Crandall, supra note 24; M.B. Harris, L.C. Walters & S. Waschull, Altering Attitudes and Knowledge
About Obesity, 131 J. SOC. PSYCHOL. 881 (1991) (claiming that stigmatization of the obese in Western
cultures has caused obese individuals to suffer discrimination and feelings of shame and guilt); Rebecca M.
Puhl & Kelly D. Brownel, Bias, Discrimination, and Obesity, 9 OBESITY RES. 788 (2001) (discussing
attitudes and behaviors biased against obese individuals); Puhl & Heuer, supra note 16; Marike Tiggemann
& Esther D. Rothblum, Gender Differences in Social Consequences of Perceived Overweight in the United
34
35
19
These negative emotions generate taste discrimination against the obese in various
spheres of life, such as education and health. In the context of employment, employers
practice taste discrimination against obese employees when they indulge their dislike and
disgust of the obese and treat them negatively compared to other employees.
Compounding the negative emotions towards obesity are cultural beliefs about the
competence of the obese. Obese people are often viewed as lazy, undisciplined,
unmotivated, lacking in willpower, and less capable.40 These beliefs affect how obese
people are evaluated in the labor-force and lead to discrimination.
Are the cultural beliefs about the obese correct or erroneous from a statistical
perspective? Given the dislike and disgust that obesity can evoke, it would seem that at
least some of the cultural beliefs regarding obese people are based on mistaken
stereotypes and statistically incorrect. Thus, it would also seem that at least some of the
discrimination generated by these cultural beliefs are based on mistaken stereotypes and
not statistics.
In addition to the direct effect of tastes and cultural beliefs, customer preferences
can have an indirect impact on the employment discrimination of the obese. At times in
employment contexts, negative emotions and cultural beliefs influence customer
satisfaction, if they express a strong preference not to be served by obese people. In such
cases, customer tastes and cultural beliefs lead to financial penalties for employers who
hire obese workers. Employers might, consequently, discriminate against obese people in
terms of hiring and salary, in order to avoid the financial costs entailed in employing
them. With these circumstances of discrimination therefore, it is the tastes and beliefs of
customers and the price of not catering to those beliefs that generate discrimination from
employers.41 The employers do not necessarily share these negative emotions and cultural
States and Australia, 18 SEX ROLES 75 (1988) (showing that men and women stereotype obese targets
significantly more negatively than they do nonobese targets).
40
Crandall, supra note 24; Harris, Walters & Waschull, supra note 39; Puhl & Brownel, supra note 39;
Puhl & Heuer, supra note 16; Tiggemann & Rothblum, supra note 39.
41
When similar claims regarding customer preferences have been made in the context of Title VII
litigation, courts have consistently rejected them based on the argument that such preferences mirror and
strengthen the prejudice that the law aims to eliminate. For a general discussion, see DEBORAH RHODE, THE
BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND LAW (2010) (discussing the cost of not being
attractive, how appearance laws work in practice, and suggesting ways to extend their reach). For similar
arguments, see generally John J. Donohue, The Law and Economics of Antidiscrimination Law, in
HANDBOOK OF LAW AND ECONOMICS 1389 (Mitchell A. Polinsky & Steven Shavell eds., 2007), available
20
beliefs regarding the obese, but they nonetheless participate in the discrimination when
they take into account the presumed responses of potential customers to an employee's
obesity.
Lastly, gay men suffer mostly from taste discrimination. Homosexuality is
generally devalued in the United States, considered by much of the adult population as
inferior to heterosexuality. It can evoke negative emotions of disapproval, disgust, and
hostility and is often viewed as wrong, unnatural, and immoral.42 As a result, gay men
experience taste discrimination in a variety of contexts, employment being only one of
them.
The cultural beliefs targeting gay men tend to be general, related to the wideranging, negative emotions and moral views of homosexuality and not directly associated
with perceived competence and productivity at the workplace. Thus, at the workplace,
discrimination of gay men is based mostly on taste and less on cultural beliefs about their
competence and job performance. In addition, similar to the case of obese employees, the
tastes and cultural beliefs of customers who express a preference not to be served by gay
men indirectly generate employment discrimination when employers yield to that
preference and discriminate against gay male employees.
II. LEGAL (NON) PROTECTION
at http://works.bepress.com/john_donohue/13 (exploring theoretical arguments for prohibiting private
discriminatory conduct and showing the effectiveness of federal law in the first decade following the
passage of the 1964 Civil Rights Act, in contrast to the generally less optimistic findings from subsequent
antidiscrimination interventions).
42
Gregory M. Herek, Assessing Heterosexuals’ Attitudes Toward Lesbians and Gay Men: A Review of
Empirical Research With the ATLG Scale, in LESBIAN AND GAY PSYCHOLOGY: THEORY, RESEARCH, AND
CLINICAL APPLICATIONS 206 (Beverly Greene & Gregory M. Herek eds., 1994); Mary E. Kite & Bernard
E. Whitley, Do Heterosexual Women and Men Differ in Their Attitudes Toward Homosexuality? A
Conceptual and Methodological Analysis, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING
PREJUDICE AGAINST LESBIANS, GAY MEN, AND BISEXUALS 39 (Gregory M. Herek ed., 1998); ALAN YANG,
FROM WRONGS TO RIGHTS: PUBLIC OPINION ON GAY AND LESBIAN AMERICANS MOVES TOWARD
EQUALITY (1998); Gregory M. Herek, Beyond “Homophobia”: Thinking About Sexual Prejudice and
Stigma in the Twenty-First Century, 1 SEXUALITY RES. & SOC. POL’Y 6 (2004) (discussing the history and
impact of homophobia); Gregory M. Herek, The Psychology of Sexual Prejudice, 9 CURRENT DIRECTIONS
IN PSYCHOL. SCI. 19 (2000) (a review of current knowledge about the prevalence of sexual prejudice, its
psychological correlates, its underlying motivations, and its relationship to hate crimes and other antigay
behaviors).
21
This Part looks at existing antidiscrimination law and the limited protection it
offers to the obese, gay men (and women), and mothers from employment discrimination.
The discussion illustrates how ideas about trait immutability have influenced courts and
lawmakers when considering the appropriateness of protecting each of these three
targeted groups against employment discrimination.
Generally legislatures and courts are less reluctant to provide protection against
discrimination based on immutable traits. This guiding "immutability intuition" is also
what generates choice-based discrimination. It is based on moral beliefs regarding choice
and responsibility and assumes discrimination to be unjust when based on traits people
cannot choose.43
Federal and state employment discrimination laws prohibit discrimination based,
for example, on such traits as race, gender, religion, national origin, physical disability,
and age.44 Furthermore, the U.S. Constitution, as well as some state constitutions,
prohibits government entities from practicing employment discrimination (amongst other
forms of discrimination) that is based on certain traits. In contrast, discrimination in the
private sector is not directly constrained by the Constitution, but rather only by a growing
body of federal and state employment discrimination statutes. However, the Constitution
has an indirect impact on employment discrimination in the private sector, as Congress
and state legislatures, as well as federal and state courts, tend to be guided by the
rationale of the criteria set by the Supreme Court for deciding which groups of people
should be protected from employment discrimination. Thus, to better understand the
underlying rationale to the limited protection against employment discrimination
accorded to the obese, gay men and women, and mothers, it is important to first examine
the Supreme Court's approach in addressing discriminatory employment practices of
federal and state governments.
43
For a discussion of the immutability intuition, see infra Part III.A.
A growing body of federal employment statuses provide protection from discrimination based on group
membership. Title VII of the Civil Rights Act of 1964, for example, prohibits discrimination based on race,
color, religion, sex, or national origin. The Equal Pay Act of 1963 prohibits employers from paying
different wages based on the sex of employees (but not other discriminatory employment practices).
The Age Discrimination in Employment Act of 1967 prohibits employment discrimination on the basis of
age. The Rehabilitation Act of 1973 prohibits discrimination and expands the employment opportunities for
handicapped individuals. The 1990 American with Disabilities Act prohibits discrimination by employers
based on a physical or mental handicap.
44
22
The Fifth and Fourteenth Amendments of the Constitution have been interpreted
by the Supreme Court as constraining the federal and state governments from engaging in
discriminatory practices. The Fifth Amendment prohibits the federal government from
depriving individuals of life, liberty, or property without due process,45 while
the Fourteenth Amendment prohibits states from violating individuals’ rights to due
process and equal protection.46 Certain distinctions between people when made by the
federal or state governments are defined as suspect classifications and, as a result, when
challenged subject to strict judicial scrutiny under the equal protection clause.47 To pass
the strict scrutiny test, any such distinction must be narrowly tailored to further a
compelling state interest. When determining which classifications require strict scrutiny,
the Supreme Court has traditionally applied the following criteria: whether the trait
characterizing the members of the group is immutable48 ; a history of purposeful
discrimination against members of the group; and whether the group is politically
45
U.S. Const. amend. V.
U.S. Const. amend. XIV.
47
United States v. Carolene Prods., 304 U.S. 144 (1938). On the application of the scrutiny, see Korematsu
v. United States, 323 U.S. 214 (1944) (upholding Executive Order 9066, which ordered all persons of
Japanese descent into internment camps during World War II); Loving v. Virginia, 388 U.S. 1 (1967)
(striking down Virginia’s law banning interracial marriage).
48
The immutability factor has been widely criticized by scholars, on various grounds. See, e.g., Jack M.
Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323–24 (1997) (discussing the role of society in
stratification based on traits); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of
the Argument from Immutability, 46 STAN L. REV. 503 , 507-16 (1994) [hereinafter Halley, Argument from
Immutability] (criticizing the immutability argument in homosexual cases); Janet E. Halley, The Politics of
the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 92627 (1989) [hereinafter Halley, Bisexual Identity] (arguing the displacement of Immutability and showing
that immutability is neither a necessary nor a sufficient precondition for recognition of a suspect
classification); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992)
(discussing the problematic immutability doctrine); Laurence H. Tribe, The Puzzling Persistence of
Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980) (discussing the way that the Supreme
Court describes the content and role of constitutional law); 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 (1998)
(arguing that courts are more likely to accord heightened scrutiny to a classification if its defining trait is
immutable or visible, meaning that groups that can assimilate into mainstream society by changing or
altering their defining trait are less likely to benefit from judicial solicitude and by withholding protection
from these groups, the judiciary is subtly encouraging them to assimilate when faced with burdensome
legislation). For the traditional justifications for the immutability requirement, see Bruce A. Ackerman,
Beyond Carolene Products, 98 HARV. L. REV. 713, 740-46 (1985); JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 150 (1980); Nancy J. Knauer, Science, Identity, and the
Construction of the Gay Political Narrative, 12 L. & SEXUALITY 1 (2003); E. Gary Spitko, A Biologic
Argument for Gay Essentialism-Determinism: Implications for Equal Protection and Substantive Due
Process, 18 U. HAW. L. REV. 571, 598 (1996); Marc R. Shapiro, Comment, Treading the Supreme Court’s
Murky Immutability Waters, 38 GONZ. L. REV. 409 (2003).
46
23
powerless.49 The immutability criterion is the most relevant to our discussion of
antidiscrimination law and its insufficient protection of gay men and women, the obese,
and mothers. It is based on the belief that when traits are not voluntary and not within the
control of the people who hold them, unequal treatment based on those traits is unjust,
because the victims of discrimination cannot prevent it.50
When classifications do not meet these criteria, the Court usually applies
intermediate51 or rational basis scrutiny,52 rather than strict scrutiny. The level of scrutiny
applied is tremendously important. Strict scrutiny tends to be a rather rigorous standard of
49
Frontiero v. Richardson, 411 U.S. 677, 686 (1973). See also Ackerman, supra note 48, at 718 (explaining
the four operative terms of Carolene Products to be “(1) prejudice, (2) discrete, (3) insular, and (4)
minorities”); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 16-23 (3d ed. 2000) (considering
such factors as political powerlessness, a history of discrimination, immutable traits, and relevance of
classification to governmental purpose); James W. Ellis, On the "Usefulness" of Suspect Classifications, 3
CONST. COMMENT. 375, 376 (1986); Jane Rutherford, Equality as the Primary Constitutional Value: The
Case for Applying Employment Discrimination Laws to Religion, 81 CORNELL L. REV. 1049, 1081 (1996)
("The Supreme Court focuses on immutability, a history of discrimination, lack of political access, and
discrete and insular status as the hallmarks of powerlessness, that trigger strict scrutiny."); Thomas W.
Simon, Suspect Class Democracy: A Social Theory, 45 U. MIAMI L. REV.107, 123-28 (1990); Mark
Strasser, Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64
TEMP. L. REV. 937, 938-39 (1991).
50
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S.
164, 175 (1972)). See also Samuel A. Marcosson, Constructive Immutability, 3 U. PA. J. CONST. L. 646,
673 (2001) ("Few arguments offered on behalf of ending discrimination or inequality resonate
more powerfully than immutability. It reflects the universal appeal of the concept that it is
unfair to disadvantage people based on a characteristic over which they exercise no control.").
51
Intermediate scrutiny has been applied to distinctions based on sex and illegitimacy. To pass the
intermediate scrutiny test, a law must be aimed at achievement of important governmental objectives. Craig
v. Boren, 429 U.S. 190 (1976) (invalidating Oklahoma statute that prohibited sale of 3.2% beer to men
under 21 and to women under 18, rejecting statistical evidence purporting to show that males between 1820 are a greater traffic risk than females, and finding that the gender-based difference was not
“substantially related to the achievement of the statutory objective”). For the application of the intermediate
scrutiny test, see Bradwell v. State of Illinois, 83 U.S. 130 (1873) (upholding Illinois law denying women
the right to practice law); Minor v. Happersett, 88 U.S. 162 (1875) (holding that women’s right to vote
could be denied); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) (invalidating the all-female
admissions policy at a school of nursing); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (holding that
gender-based peremptory challenges are unconstitutional); U.S. v. Virginia, 518 U.S. 515 (1996)
(invalidating male-only admissions at VMI for lack of an “exceedingly persuasive justification”).
52
The rational basis test applies when there is no suspect or quasi-suspect classification involved. To pass
the test, the classification must be rationally related to a legitimate state purpose. See, e.g., Railway Express
Agency v. New York, 336 U.S. 106 (1949) (upholding New York regulation allowing advertising on trucks
used for deliveries but prohibiting them on trucks used mainly for advertising); Williamson v. Lee Optical
Co., 348 U.S. 483 (1955) (upholding Oklahoma statute prohibiting opticians from supplying lenses without
a prescription from an optometrist or ophthalmologist); Minnesota v. Cloverleaf Creamery Co., 449 U.S.
456 (1981) (upholding Minnesota law banning sale of milk in plastic, nonreturnable containers but
permitting sale of milk in paperboard, nonreturnable containers); City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432 (1985) (striking down an ordinance requiring a special permit for a group home for the
mentally retarded but not requiring one for hospitals, sanitariums, or nursing homes).
24
review,53 whereas rational basis a very lenient standard.54 As a result, when a government
makes distinctions based on allegedly mutable characteristics, the Supreme Court tends to
be more tolerant and accord less protection from discrimination. Because state courts and
legislatures generally follow the Supreme Court's criteria when considering protection
from employment discrimination in the private sector, the immutability factor has worked
to further limit the protection from discrimination by private employers based on certain
mutable traits.
Recall that it is when traits are mutable that choice-based employment
discrimination is generated. The moral intuition that results in choice-based
discrimination resemble greatly the intuition regarding the unfairness of making
distinctions based on traits beyond people’s control that have guided the Supreme Court
in setting its immutability criterion.
With these criteria as background, I will now turn to the limited protection offered
by current antidiscrimination law to the obese, gay men and women, and mothers against
employment discrimination and show how notions about trait immutability have shaped
the debate on the appropriateness of protection. In general, employment discrimination
against the obese, gay men and women, and mothers is not directly prohibited under
federal law, and is unlawful only when it also involves forms of discrimination that are
prohibited.
A.
Obesity
Obese individuals who are the victims of employment discrimination are
protected under federal antidiscrimination law only when additional forms of
discrimination are involved and the latter are prohibited. The most relevant protected
characteristic that tends to be associated with weight discrimination is disability under the
2000 Americans with Disabilities Act55 and section 504 of the Rehabilitation Act of
53
But see Korematsu v. United States, 323 U.S. 214 (1944) (upholding an order under the strict scrutiny
test).
54
But see City of Cleburne, 473 U.S. at 432 (striking down an ordinance under the rational basis test). Note
however, that in this case, the court might have been suspicious of animus towards the mentally retarded.
55
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000). For an in-depth discussion
25
1973. These two laws protect disabled individuals with a physical or mental impairment
that substantially limits one or more major life activities from employment discrimination
in both the public and private sectors. State and Federal courts, however, have given a
restrictive interpretation to the protection of the obese under disability law, holding that
weight discrimination constitutes unlawful discrimination under disability laws only in
extreme cases of severe obesity.56 When deliberating weight discrimination, the courts
have generally applied the immutability criterion and, therefore, not extended protection
from employment discrimination to the obese. Interestingly, as I further describe, when
limited protection has been granted, the immutability factor and its underlying moral
intuition were questioned.
Following the judicial approach, the U.S. Equal Employment Opportunity
Commission (EEOC) has clarified that obesity in itself is not an imperilment, and as
such, it is not protected under disability law unless it is severe (i.e., a weight more than
100% over the norm).57 To date, only the state of Michigan,58 the District of Columbia,59
and a few other localities explicitly prohibit weight discrimination in employment.60
Prior to the federal court ruling in Cook,61 no federal court had found obesity to
amount to a disability under federal law.62 The case-law had been split on whether
obesity should be classified a disability under state laws,63 with some courts focusing on
of the ADA, see NANCY LEE JONES, THE AMERICANS WITH DISABILITIES ACT (ADA): STATUTORY
LANGUAGE AND RECENT ISSUES (CRS Report 98-921, 2003). The Act was amended in 2008 to clarify that
discriminated based on actual impairment or perceived impairment is prohibited “whether or not the
impairment limits or is perceived to limit a major life activity.” 29 C.F.R. § 1630.2 (g) (2008).
56
EEOC v. Watkins Motor Lines Inc., 553 F.3d 593 (7th Cir. 2009); Francis v. City of Meriden, 129 F.3d
281 (2d Cir. 1997); Cook v. R.I. Dept. of Mental Health, Retardation & Hosps., 10 F.3d 17 (1st Cir. 1993);
Tudyman v. United Airlines, 608 F. Supp. 739, 746, 38 EPD Par. 35,674 at 40,015, 1 AD Cas. (BNA) 664,
669 (C.D. Cal. 1984); Underwood v. Trans World Airlines, 710 F. Supp. 78, 83-84, 51 EPD Par. 39,297 at
59, 106–07 (S.D.N.Y. 1989); RHODE, supra note 41, at 122–25.
57
29 C.F.R. pt. 1630 app. § 1630.2 (j).
58
Elliott-Larsen Civil Rights Act, Act 453 of 1976.
59
D.C. CODE. § 2-1401.01 (2011).
60
See, e.g., CAL., ADMIN. CODE § 12A.1 (2008); Urbana Ill., Mun. Code § 12-37 (2007); Santa Cruz, Cal.,
Mun. Code § 9.83.010 (2008).
61
Cook, 10 F.3d at 17.
62
See, e.g., Tudyman v. United Airlines, 608 F. Supp. 739, 746 (rejecting plaintiff's claim that his weight
qualifies as a disability under the Rehabilitation Act); Cassista v. Community Foods, Inc., 856 P.2d 1143
(1993) (holding that because of its mutability, the plaintiff's obesity does not qualify as a disability under
California disability law.
63
See, e.g., EEOC v. Watkins, 463 F.3d 436 (6th Cir. 2006); Cook, 10 F.3d at 17; William C. Taussig,
Weighing In Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health,
Retardation, and Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and
26
the mutability of obesity holding that since the condition is mutable, it should not be
classified a disability,64 and others acknowledging it to be a disability under some state
laws.65
Cook was the first federal case to classify severe obesity (but not obesity in itself)
as a disability under the 1973 Rehabilitation Act and, consequently, to extend the
protection of the federal disability law to severely obese people. Bonnie Cook claimed
employment discrimination on the basis of her weight when she was not rehired as an
aide at a Rhode Island residential center for severely retarded children. She had
previously held this position for five years at the center, but had been forced to resign
because of her daughter’s illness. The court discussed the allegedly voluntary nature of
obesity and held that it was irrelevant in determining the existence of a physical
impairment as required under federal disability law. It stressed that there was nothing in
the language of the Rehabilitation Act to suggest that protection from discrimination is
linked to how people became impaired. However, the court also ruled that the mutability
of an impairment is relevant in determining the magnitude of the impairment’s limiting
effect on one or more life activities. Following Cook, other federal courts found severe
obesity to qualify as a disability under federal law.66 This has made the immutability
criterion redundant in the context of employment discrimination of the severely obese.
B.
Sexual Orientation
No federal law, including Title VII of the 1964 Civil Rights Act, expressly
prohibits employment discrimination based on sexual orientation. However, an increasing
number of states are passing laws67 and ordinances68 protecting individuals from
the Americans With Disabilities Act, 35 B.C. L. REV. 927, 941-45 (describing the laws protecting against
weight discrimination).
64
See, e.g., Greene v. Union Pacific R. Co., 548 F. Supp. 3 (1981) (holding that the plaintiff's obesity did
not qualify as a disability under Washington disability law because of its mutable nature).
65
See, e.g., Gimello v. Agency-A-Car Systems, Inc., 250 N.J. Super. 338 (1991).
66
E.E.O.C. v. Res. for Human Dev., Inc., No 10-3322 (E.D. La. Dec. 6, 2011) (holding that severe obesity
qualifies as a disability under Louisiana law and does not require proof of an underlying physiological
cause, in the discrimination charge filed by an obese Prevention/Intervention Specialist who claimed she
was terminated due to being regarded as disabled due to her obesity).
67
CAL. GOV. CODE § 12940 (2001); COLO. REV. STAT. 24-34-401 (2010); CONN. GEN. STAT. § 46a-81c; 19
DEL. C. § 711 (2010); D.C. CODE ANN. § 2-1402.11 (2001); HRS § 368-1 (2010); 775 ILCS 5/1-
27
employment discrimination based on sexual orientation and gender identity. In addition,
federal civilian employees are protected from discrimination based on sexual orientation
by Executive Order No. 11478,69 as amended in 1998 by President Clinton.70 Although
Title VII does not specify sexual orientation as a protected trait, in several cases,
plaintiffs have argued that Title VII protection against gender discrimination extends to
discrimination on the basis of sexual orientation and sexual identity as well, but the claim
has been consistently rejected in the federal courts.71In DeSantis v. Pacific Telephone &
Telegraph Co.,72 the plaintiffs argued that the employer's discrimination of employees on
the basis of sexual orientation constituted gender discrimination. The employer would
fire men sexually involved with men, but not women involved with men and vice versa:
women sexually involved with women would be fired, but not men sexually involved
with women. This claim was rejected by the court, which held that the employer was
applying the same criterion for both genders when involved in a same-gender
relationship, and therefore, it was not practicing gender discrimination.
Interestingly, notions about choice and controllability also shaped military policy
regarding the discharge of gay men and women from the service. From 1993 to 2011,
military personnel who revealed their homosexuality were subject to discharge under the
“Don’t Ask, Don’t Tell” policy. This policy, which was integrated into the National
102 (2011); Iowa Civil Rights Act (ICRA); 5 M.R.S. § 4572 (2011); 2009 MD. HB 5; ALM GL ch. 151B,
§ 4 (2010); NEV. REV. STAT. ANN. § 613.330 (2010); N.H. REV. STAT. ANN. §§ 354-A:1 (2010); N.J. STAT.
ANN. § 10:5-12(a) (2011); N.M. STAT. ANN. § 28-1-7 (2010); OR. REV. STAT. § 174.100(6) (2009); 21 V.
S. A, § 495(a)(1) (2010); Rev. Code Wash. (ARCW) § 49.60.010 (2011); WIS. STAT. ANN. § 111.36(d)(1)
(2010).
68
Larson lists Arizona, Colorado, Delaware, Kentucky, Louisiana, Michigan, Ohio, Pennsylvania, and
Kansas as having passed such ordinances, ARTHUR LARSON & LEX K. LARSON, EMPLOYMENT
DISCRIMINATION § 168.11 (2010).
69
Exec. Order No. 11,478, 3 C.F.R. 803 (1966-1970), reprinted in 42 U.S.C.A. § 2000e app. at 31–33
(1982).
70
1998 WL 279160; From 1993 to 2011, military personnel who reveal their homosexuality were
subject to discharge from the service. The “Don’t Ask, Don’t Tell” policy, which was integrated into the
National Defense Authorization Act, established that although sexual orientation in itself was not grounds
for exclusion from the military, various manifestations of homosexuality, such as engagement in
homosexual acts, marriage to a person of the same gender, or intentional declarations of homosexuality,
were indeed grounds for exclusion or dismissal.
71
See, e.g., Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001); Simonton v. Runyon, 232
F.3d 33 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999);
Wrightson v. Pizza Hut of Am., Inc.,99 F.3d 138 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons,
Inc., 876 F.2d 69 (8th Cir. 1989), cert. denied, 493 U.S. 1089 (1990); Ulane v. E. Airlines, 742 F.2d 1081
(7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982); DeSantis v. Pac. Tel. & Tel.
Co., Inc., 608 F.2d 327, 328 (9th Cir. 1979); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978).
72
608 F.2d at 327.
28
Defense Authorization Act, established that although homosexual orientation in itself is
not grounds for exclusion from the military, various manifestations of homosexuality,
such as engagement in homosexual acts, marriage to a person of the same gender, or
intentional declarations of homosexuality, are grounds for exclusion or discharge. The
policy's underlying rationale is similar to the intuition behind the immutability criterion,
as it penalizes only those who "choose" to act on their sexual preferences.73
I now turn to briefly describe how the Supreme Court has addressed the rights of
gay men and women in constitutional cases. Recall that Court decisions in constitutional
cases only indirectly impacts employment discrimination in the private sector. In 1996, in
Romer v. Evans,74 the Supreme Court struck down an amendment to the Colorado state
constitution that prohibited any law or executive or judicial action from recognizing gay
men and women as a protected class and from protecting them from discrimination in
general.75 The Supreme Court applied rational basis scrutiny—and not strict scrutiny, as
the Colorado Supreme Court required—in determining the amendment to be
unconstitutional under Fifth Amendment equal protection. The Court held that there is no
legitimate purpose to singling out the group of gay men and women and excluding them
from the scope of legal protection from discrimination and from using the political
process. The Court further observed that the amendment had been motivated by
animosity towards homosexuality.
In Lawrence v. Texas (2003),76 the Supreme Court struck down a Texas statute
banning homosexual sodomy and explicitly overturned its previous ruling on this matter
in Bowers v. Hardwick.77 The law was declared unconstitutional and in violation of
Fourteenth Amendment due process. In the wake of Lawrence, similar sodomy statutes in
thirteen other states were invalidated. Regarding the level of scrutiny applied by the
73
Yoshino, supra note 48.
517 U.S. 620 (1996).
75
The full text of the amendment was as follows:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of
Colorado, through any of its branches or departments, nor any of its agencies, political
subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute,
regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the basis of or entitle any person or class
of persons to have or claim any minority status quota preferences, protected status or claim of
discrimination.
76
539 U.S. 558 (2003).
77
478 U.S. 186 (1986).
74
29
Supreme Court in Lawrence, Justice Scalia noted in his dissent that the majority did not
appear to have applied the strict scrutiny standard but rather "an unheard-of form
of rational basis review that will have far-reaching implications beyond this case."78
Lower courts have given varying interpretations to the standard of scrutiny applied by the
Court in Lawrence. In Lofton,79 for example, the Eleventh Circuit Court of
Appeals upheld a state law barring the adoption of children by gay men and women,
holding that strict scrutiny had not been applied in Lawrence. In contrast, in Witt,80
the Ninth Circuit Court of Appeals held that Lawrence had applied strict scrutiny.
Finally, same-sex marriage has been legally recognized in several jurisdictions
and by the federal government. In Windsor,81 The Supreme Court had invalidated The
Defense of Marriage Act of 1996 that prevented the federal government from recognizing
same-sex marriages legalized under the state laws and allowed states to refuse to
recognize such same-sex marriages that were performed in other states, because it was in
violation with the Fifth Amendment.
While some jurisdictions have legalized same-sex marriage through legislations,
four states have done so through court decisions: Massachusetts, California, Connecticut,
and Iowa. The supreme courts of California,82 Connecticut,83 and Iowa84 addressed the
equal protection clauses in their respective state constitutions and held that classifications
made on the basis of sexual orientation are suspect. In California, this classification was
subject to strict judicial scrutiny, while in Connecticut and Iowa, only intermediate
judicial scrutiny was required. In deliberating whether the classification is a suspect
distinction, the Iowa Supreme Court addressed the immutability criterion as an indicator
of the centrality of a trait to a person's identity. It held that because sexual orientation is
so central to people’s identities, it should be considered an immutable trait for the
purposes of the analysis.85
78
Lawrence, 539 U.S. at 586.
Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004)
80
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008).
81
United States v. Windsor, 570 U.S. ___, (2013).
82
In re Marriage Cases, 43 Cal.4th 757 (2008).
83
Kerrigan & Mock v. Conn. Dep't of Pub. Health, 957 A.2d 407 (Conn. 2008).
84
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).
85
Id. at 893.
79
30
The Connecticut Supreme Court held the immutability criterion to be merely
indicative of whether the discrimination in question is unfair and whether a particular
group has been victimized. The court reasoned that because sexual orientation is so
central to people’s identity, it is unnecessary to decide whether sexual orientation is an
immutable trait.86 Finally, the California Supreme Court held, in the context of the
immutability criterion, that because sexual orientation is so central to identity, it would be
unfair to require people to alter it in order to avoid discrimination.
Although the same-sex marriage cases described are not directly related to
employment discrimination on the basis of sexual orientation, they are relevant to our
discussion of employment anti-discrimination law and the immutability criterion as state
courts and legislatures tend to be guided by the criteria used by state Supreme Courts in
equal protection cases in employment discrimination cases.
C.
Motherhood
Similar to the discrimination of the obese and gay men, discrimination against
mothers (and all other caregivers) is not directly prohibited by federal law87 unless it
entails other forms of unlawful discrimination, such as gender discrimination.88 The
Obama Administration’s policy agenda89 expresses a commitment to protecting
caregivers from employment discrimination by enforcing the guidelines developed by the
Equal Employment Opportunity Commission (EEOC).90 Only federal employees are
86
Kerrigan & Mock, 957 A.2d at 436.
Discrimination targeted against caregivers of individuals with disabilities is prohibited under the
Americans with Disabilities Act. Discrimination against pregnant women is prohibited under the Pregnancy
Discrimination Act of 1978, 42 U.S.C. §§ 12101–12213, 47 U.S.C § 225.
88
See Joan C. Williams & Stephanie Bornstein, Evolution of "FReD": Family Responsibilities
Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 HASTINGS L.J. 1311
(2007) [hereinafter Williams & Bornstein, Stereotyping and Implicit Bias] (discussing FRD cases and
showing the benefit of gender stereotyping for plaintiffs in these cases); Joan C. Williams & Stephanie
Bornstein, Caregivers in the Courtroom: The Growing Trend of Family Responsibilities Discrimination, 41
U.S.F. L. REV. 171 (2006) [hereinafter Williams & Bornstein, Family Responsibilities Discrimination]
(discussing FRD cases under the alternative way of proving gender stereotyping); Joan C. Williams &
Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on
the Job, 26 HARV. WOMEN'S L.J. 77 (2003) (discussing how to frame the claims of family caregivers).
89
Agenda, Office of the President-Elect, available at http://change.gov/agenda (last visited Feb. 14, 2011).
90
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE: UNLAWFUL DISPARATE
TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES § 615 (2007), available at
http://www.eeoc.gov/policy/docs/caregiving.pdf.
87
31
expressly protected from employment discrimination based on their parental status under
Executive Order No. 11478.91
Similar to the very limited protection from employment discrimination provided
to caregivers under federal law, only the state of Alaska, the District of Columbia, and a
few dozen cities and counties explicitly prohibit employment discrimination based on
parental status or family responsibilities. In addition, federal and state family leave laws92
allow family leave under certain circumstances and prohibit discrimination against
employees who take leave.
Some scholars have pointed to the pitfalls of treating discrimination of mothers
and other caregivers as unlawful gender discrimination and have called for more
sweeping reforms to the law to directly contend with this discrimination and
accommodate mothers and other caregivers in the workplace.93 Yet, in fact, federal law's
prohibition of gender discrimination has proven a successful avenue for litigating
employment discrimination against mothers in some important respects.94 Most notably,
the courts have recognized the gender stereotypes underlying conventional conceptions of
mothers and have found this to be unlawful under Title VII, even without proof that
fathers have been treated more favorably than mothers.95
91
Exec. Order No. 11,478, 3 C.F.R. 803 (1966–1970), reprinted in 42 U.S.C.A. § 2000e app. at 31–33
(1982), amended by Executive Order No. 13,152, 65 Fed. Reg. 26,115 (May 2, 2000).
92
See the federal The Family and Medical Leave Act of 1993 and the California Family Rights Act of
1994.
93
See, e.g., Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42
VAND. L. REV. 1183, 1226-28 (1989) (discussing litigated and nonlitigated changes at work); Kathryn
Abrams, Book Review: Cross-Dressing in the Master’s Clothes, 109 YALE L.J. 745, 759 (2000); Mary
Becker, Caring for Children and Caretakers, 76 CHI.-KENT L. REV. 1495, 1517 (2001) (discussing the
possibility of forcing employers to accommodate working parents); Debbie N. Kaminer, The Work-Family
Conflict: Developing a Model of Parental Accommodation in the Workplace, 54 AM. U. L. REV. 305, 307–
09 (2004) (claiming that two federal statutes, the Family and Medical Leave Act (FMLA) and
Title VII of the 1964 Civil Rights Act (Title VII), failed to provide meaningful accommodation for the
majority of working parents); Laura Kessler, The Attachment Gap: Employment Discrimination Law,
Women’s Cultural Caregiving, and the Limits of the Economic and Liberal Legal Theory, 34 U. MICH. J.L.
REFORM 371, 457–58 (2001) (claiming that the law fails to address the conflicts between work and family
that continue to disproportionately burden women); Peggie R. Smith, Accommodating Routine Parental
Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 WIS. L.
REV. 1443, 1445 (2001) (claiming that the absence of effective protection causes many employees to risk
losing their jobs when they must place the needs of their children ahead of their jobs).
94
See generally Williams & Bornstein, Stereotyping and Implicit Bias, supra note 88; Williams &
Bornstein, Family Responsibilities Discrimination, supra note 88.
95
See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004); Plaetzer v.
Borton Auto., No. Civ.02-3089, 2004 WL 2066770 (D. Minn. Aug. 13, 2004).
32
One prominent example is the Back decision in 2004.96 Elana Back, an
elementary school psychologist with outstanding performance reviews, challenged the
denial of her tenure by the school district. Based on the comments allegedly made by her
supervisors, she argued that this had derived from stereotypes and beliefs that, as a
mother of young children, she could not succeed in her position. The school district
argued that stereotypes about mothers (and pregnant women) could not be presumed to
be based on gender without additional evidence regarding the stereotypes about fathers.
The court rejected the defendant's arguments, holding that the stereotypes about women's
commitment to their caregiving responsibilities might in themselves constitute gender
discrimination prohibited in public employment under the equal protection clause.
The legislative history of the 1978 Pregnancy Discrimination Act, which amended
Title VII of the 1964 Civil Rights Act to prohibit discrimination against pregnant
women, highlights the link that has been made between notions of choice and
responsibility regarding getting pregnant and becoming a mother and the perception of
the appropriateness of protecting pregnant women and mothers from workplace
discrimination. Prior to the law's enactment, the legality of distinctions based on
pregnancy was addressed by the Supreme Court in a number of cases. In its 1976
Gilbert97 decision, for example, the Court held that the exclusion of pregnancy and its
related conditions from health plans is not gender discrimination and, therefore, not in
violation of Title VII of the Civil Rights Act. This decision was based on an earlier
decision from 1974, in Geduldig,98 where the Court had upheld a California disability
insurance program that denied benefits for pregnancy-related disabilities, holding that
classifications on the basis of pregnancy do not amount to gender discrimination. Writing
for the majority in Gilbert, Justice Rehnquist held that the voluntary nature of pregnancy
distinguishes it from temporary disabilities and that, therefore, pregnancy discrimination
cannot be classified as gender discrimination.99 Interestingly, as Justice Brennan noted in
96
Back, 365 F.3d at 107.
Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145 (1976).
98
Geduldig v. Aiello, 417 U.S. 484 (1974).
99
For the arguments made by the plaintiffs in the two cases regarding the voluntary nature of pregnancy,
see Deborah Dinner, The Costs of Life: Feminism, Choice, and the Debate Over Pregnancy Disability
Benefits, Presentation at the American Society for Legal History Annual Meeting (Nov. 19, 2010); Erica
B. Grubb & Margarita C. McCoy, Love’s Labors Lost: New Conceptions of Maternity Leaves, 7 HARV.
97
33
his dissent, the relevant insurance plan did not exclude other so-called voluntary
conditions, such as sports injuries, attempted suicides, cosmetic surgery, or vasectomies.
Yet in passing the Pregnancy Discrimination Act, Congress rejected the Supreme
Court's separation of pregnancy and gender. The Act prescribes that employment
discrimination on the basis of pregnancy, childbirth, or any related medical condition
constitutes gender discrimination as prohibited under Title VII of the Civil Rights Act.
The Pregnancy Discrimination Act, however, focuses on "disabilities" associated with
pregnancy and the illegality of distinctions made on the basis of such a disability, rather
than on motherhood and caregiving. Regardless, ideas about the extent of choice and
control associated with getting pregnant and becoming a mother have shaped the debate
over the appropriateness of legal protection for pregnant women against employment
discrimination.
***
In sum, Congress and federal and state courts tend to be guided by the rationale of
the immutability criterion when determining which groups ought to be protected against
employment discrimination. For this reason, the obese, gay men and women, and mothers
are not expressly protected under federal antidiscrimination law. In a number of cases,
however, courts and legislatures have questioned the immutability criterion and provided
limited protection from employment discrimination on the basis of allegedly immutable
traits.
III. THE APPROPRIATE LEGAL PROTECTION
This Part now takes a normative look at the appropriateness of legal protection
from employment choice-based discrimination. I begin by outlining the logic of the
immutability intuition, which both generates choice-based discrimination and has
traditionally guided lawmakers in deciding whether to extend protection against
discrimination based on traits that are viewed as voluntary. I then argue that when traits
are constitutive to one’s identity, people should be protected from discrimination based
C.R.–C.L. L. REV. 260, 287 (1972) (quoting CITIZENS' ADVISORY COUNCIL ON THE STATUS OF WOMEN,
REPORT OF THE TASK FORCE ON SOCIAL INSURANCE AND TAXES 45 (1968)).
34
on those traits, even when they are mutable. Lastly, I consider chosen traits that enhance
the general welfare and chosen traits that are costly to society at large.
But first, an important clarification must be made regarding the three traits I focus
on in this article: obesity, sexual orientation, and motherhood. It is virtually impossible to
evaluate the actual degree of free choice associated with each of these traits; indeed,
research suggests about all three that they could be affected by biological or social factors
or both.100
Regardless, for the purposes of the discussion in this article, I assume them to be mutable
traits to at least some degree, for three main reasons. First, these traits are perceived by
many to be mutable and generally presumed as such by the law as well, which thus tends
not to protect against discrimination based on these traits. Second, as explained in Part I,
the perception of the mutability of these traits generates greater discrimination against
those who bear them. Third, even if the three traits were shown to be fully immutable,
many of the practices associated with them would still be considered mutable. Thus, for
example, even if sexual orientation were proven to be completely immutable, the more
visible practices associated with homosexuality, which tend to elicit discrimination, such
as cohabiting with a same-sex partner, would still be considered mutable. Consequently,
in order to fully assess the normative considerations underlying protection from choicebased discrimination, I treat all three traits as mutable to some degree.
When weighing the appropriateness of legal protection from choice-based
discrimination, it is important to keep in mind that when a trait is chosen rather than
given, harm is caused not only to the person directly discriminated against, but also to
anyone considering choosing that trait, but refrain from so doing because of the potential
100
See, e.g., Balkin, supra note 48; Halley, Argument from Immutability, supra note 48; Halley, Bisexual
Identity, supra note 48; Hunter, supra note 48; Tribe, supra note 48; Yoshino, supra note 48; Avihay
Dorfman, Assumption of Risk, After All, THEORETICAL INQUIRIES L. (forthcoming 2013) (arguing that junkfood consumers suffer from systematic cognitive shortcomings, especially the tendency to underestimate
long-term well-being due to immediate cravings); Adam Drewnowski & S.E. Specter, Poverty and Obesity:
The Role of Energy Density and Energy Costs, 79 AM. J. CLINICAL NUTRITION 6 (2004) (arguing that
obesity is linked to inequalities in education and income); Shin-Yi Chou et al., An Economic Analysis of
Adult Obesity: Results from the Behavioral Risk Factor Surveillance System, 23 J. HEALTH ECON. 565
(2004) (examining the various factors that may be responsible for the increasing number of obese adults in
the U.S.); Nicole Darmon & Adam Drewnowski, Does Social Class Predict Diet Quality?, 87 AM. J.
CLINICAL NUTRITION 1107 (2008) (discussing the connection between diet quality and socioeconomic
status); Kim Dae Hwan & John Paul Leigh, Estimating the Effects of Wages on Obesity, 52 J.
OCCUPATIONAL & ENVTL. MED. 495 (2010) (estimating the effects of wages on obesity and body mass).
For the traditional justifications for the immutability requirement, see Ackerman, supra note 48.
35
costs due to discrimination. A good example of this is the case of discrimination against
mothers. Not only are mothers directly harmed from employer discrimination against
them, but it also disadvantages non-mothers in that it leads them to forgo having children
to avoid being treated worse than non-mothers.
These non-mothers would likely suffer less harm from refraining from motherhood than
the harm they would suffer from discrimination for choosing motherhood, for otherwise,
they would have chosen to become mothers, despite the penalty involved. Yet so long as
they would have preferred to have had children, they are disadvantaged by discrimination
against mothers.
A.
Immutability
The debate over the appropriateness of legal protection from discrimination
against mutable traits tends to revolve around moral distinctions between choice and
luck.101 The argument based on the immutability intuition is that when traits are
immutable or virtually impossible to change (like race and sex), it is it is unjust not to
provide protection against discrimination based on those traits and the ensuing
inequalities.102 In contrast, when traits derive from people's voluntary choices,
discrimination is more acceptable and not necessarily unjust, because people could have
101
There is a body of moral philosophy literature that addresses the moral acceptability of inequalities that
are based on voluntary choices. The position referred to as “luck egalitarianism” is one of the more
influential and dominant positions in political philosophy, associated with the work of Ronald Dworkin,
G.A. Cohen, Eric Rakowski, Richard Arneson, and John Roemer. Egalitarians who take this position agree
that inequalities that result from bad brute luck are unjust and, therefore, ought to be nullified. See, e.g.,
RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY (2000); ERIC
RAKOWSKI, EQUAL JUSTICE (1991); J.E. ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE (1998); Gerald A.
Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906 (1989); Ronald Dworkin, What Is
Equality?, Equality of Welfare and Equality of Resources, 10 PHIL. & PUB. AFF. 185 (1981); John E.
Roemer, A Pragmatic Theory of Responsibility for the Egalitarian Planner, 22 PHIL. & PUB. AFF. 146
(1993).
102
See MATT CAVANAGH, AGAINST EQUALITY OF OPPORTUNITY 161-66, 186-87, 192-93 (2002); Note,
however, that the Supreme Court has taken the position that sometimes discrimination based on immutable
characteristics such as intelligence and physical disability may be legitimate because, unlike sex and race,
these qualities are related to productivity and performance, Frontiero v. Richardson, 411 U.S. 677, 684
(1973) (plurality opinion).
36
chosen otherwise. As Peter Singer, a moral philosopher, asserted in the context of racial
discrimination,
The person who is denied advantages because of his race is totally unable to alter
this particular circumstance of his existence and so may feel with added sharpness
that his life is clouded, not merely because he is not being judged as an individual,
but because of something over which he has no control at all. This makes racial
discrimination peculiarly invidious.103
An argument related to mutable traits is the expensive tastes claim. Under this argument,
the costs associated with making certain expensive choices over others should be borne
by the people making those choices and not by society in general. Thus, when
discrimination is directed at expensive taste choices, there is no justification to prohibit
it.104
Discussions of the appropriateness of legal protection from discrimination against
mutable traits usually do not go so far as to examine the distinctions that can and ought to
be made amongst the trait choices people make or suggest criteria for evaluating whether
and under which conditions discrimination directed against a mutable trait ought to be
prohibited.105
The principal problem with the immutability intuition is that it overlooks the fact
that even when traits are in fact chosen, there are immutable background circumstances
that shape the choices available to people and the prices that attach to those choices. The
example of obesity illustrates this well. Different opportunities are available to different
people when considering what food to consume. Research has shown for example, that
Americans living in neighborhoods without suitable access to affordable healthy food tend
to consume more junk food and to weigh more.106 Thus, if it is justified to protect people
from discrimination based on immutable traits, it is also justified to protect them from
103
Peter Singer, Is Racial Discrimination Arbitrary?, 8 PHIL. 185, 195 (1978).
DWORKIN, supra note 101, at 48–59.
105
In infra Sections B and C of this Part, I develop the criteria for evaluation the appropriateness of legal
protection.
106
Drewnowski & Specter, supra note 100; Chou et al., supra note 100; Darmon & Drewnowski, supra
note 100; Dae Hwan & Leigh, supra note 100.
104
37
discrimination based on traits chosen in the framework of a non-voluntary opportunity
structure.107
Another aspect of this problem relates to the dichotomy that the immutability intuition
sets between mutable traits and immutable traits. The intuition rests on the premise that
traits are either mutable or immutable, yet in reality, traits vary across a spectrum of
mutability; indeed, even sex is a fluid trait to a certain extent. However, from a normative
perspective, we do not want people to consider changing their sex because of
discrimination.108 Additionally, some seemingly mutable traits cannot be modified after
the initial choice has been made. A woman’s maternal status for example, is virtually
impossible to change after her children have been born. Addressing traits that are
virtually impossible to change after initially chosen as immutable traits when considering
the prohibition of discrimination, entails a very strong perception of responsibility for
past choices. Finally, some traits that are allegedly immutable can entail practices that are
mutable. Thus, for example, some of the cultural practices associated with race and
gender, which are regarded as immutable traits, are mutable,109 such as hairstyle110 and
language.111. Prohibiting discrimination only when it is directed at the immutable traits
themselves and not at their mutable accompanying practices would in essence still allow
discrimination against the groups bearing those immutable traits.112
Another critical problem with the immutability argument is that it fails to
acknowledge that considerations that are not based on control and responsibility can
justify protection against discrimination based on mutable traits. Thus, in the discussion
that follows, I focus not on whether traits can be changed, but rather whether they ought
107
Balkin, supra note 48; Halley, Argument from Immutability, supra note 48; Halley, Bisexual Identity,
supra note 48; Drewnowski & Specter, supra note 100; Chou et al., supra note 100; Darmon &
Drewnowski, supra note 100; Dae Hwan & Leigh, supra note 100.
108
Halley, Argument from Immutability, supra note 48; Halley, Bisexual Identity, supra note 48; Hunter,
supra note 48; Dorfman, supra note 100.
109
Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002).
110
Rogers v. Am. Airlines, 527 F. Supp. 232 (S.D.N.Y. 1981).
111
Garcia v. Spun Steak, 998 F.2d 1480 (1993).
112
Richard Ford argues that the assumption that there are cultural practices that are associated with race is
simplistic and dangerous, because it legitimizes distinctions made on the basis of race and may itself
generate greater discrimination. For this reason, he argues, discrimination on the basis of perceived racial
cultural differences should not be prohibited. Note that Ford’s argument focuses on practices that are
associated with immutable traits, whereas the argument in this article focuses on mutable traits. RICHARD T.
FORD, THE RACE CARD: HOW BLUFFING ABOUT BIAS MAKES RACE RELATIONS WORSE 132-33 (2009).
38
to be changed and whether people should consider changing them in light of
discrimination.
B.
Personhood, Self-Identification, and the Intrinsic Value of Traits
1. Personhood
Some of our traits are strongly connected with who we are and are constitutive of
our identity—traits related to our character, beliefs, ideas, knowledge, perceptions, moral
obligations, and familial, love, and sexual relations.113 Discrimination on the basis of
these integral traits, whether immutable or not, causes harm to our personhood; it
generates a sense of humiliation, inferiority, and shame.
In the case of traits that are fundamental to our identity that are immutable, such
as gender and race, there is the added harm that is generated by the inability to alter the
trait and avoid discrimination.114 Thus, if it were only these harms being considered when
normatively assessing the desirability of legal protection from discrimination, the harm
associated with immutable traits would seem to be greater than the harm to mutable traits.
This is in fact the intuition that legitimizes the expression of choice-based discrimination
and the one behind the conventional immutability argument. Yet discrimination against
mutable traits that are fundamental to our identity involves an additional harm as well,
namely, its constraining effect on self-identification processes and its transformation of
the intrinsic value of the discriminated-against trait.
2. Self-Identification
The claim that discrimination on the basis of mutable integral traits causes harm
to one’s self-identification assumes that every person is entitled to freedom of selfidentification which is essential to one's self-realization throughout life.115 Such selfrealization requires that we have the freedom to make the decisions that are integral to
113
Margaret J. Radin & Madhavi Sunder, Introduction: The Subject and Object of Commodification, in
RETHINKING COMMODIFICATION 8 (Martha M. Ertman & Joan C. Wiliams eds., 2005); Margaret J. Radin,
Market-Inalienability, 100 HARV. L. REV. 1849 (1987) [hereinafter Radin, Market- Inalienability];
Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) [hereinafter Radin, Property
and Personhood].
114
This is the conventional immutability argument.
115
MURRAY N. ROTHBARD, THE ETHICS OF LIBERTY (1998) (arguing that freedom is essential to the nature
of human beings).
39
our identity without being encumbered by normatively irrelevant considerations.
Discrimination, when it targets people's choices regarding the fundamental aspects of
their lives, constrains this freedom.116
For example, when gay men are discriminated against because of their
homosexuality, their personhood is harmed because one's sexual orientation is a
fundamental aspect of one's identity. Harm is also caused to their self-identification
because penalizing them for being gay limits their freedom of self-expression. They are
forced to factor in the normatively unrelated costs of discrimination on the basis of sexual
orientation and must sometimes forgo certain practices and aspects of their identity
because these costs are too great.117 As explained, with choice-based discrimination, the
harm to self-identification is experienced not only by the person directly discriminated
against, but also by anyone who refrains from an option related to the discriminatedagainst trait because of the discrimination. Obese people, for example, who are directly
discriminated against suffer harm to their personhood as a result. But harm is caused also
to anyone who considered certain lifestyle choices but decided against this because she
does not want to become obese and be discriminated against.
Interestingly, it is only when people are perceived to have the choice of a trait that
the self-identification and self-realization are impaired. As explained, the perceived level
of control associated with a trait affects the potential extent of harm that discrimination
based on that trait will cause to the self-identification process. Discrimination can limit
people's perceived freedom to choose and self-identify only to the extent to which they
believe this freedom to exist to begin with. When a trait is believed to be inherently
immutable, discrimination does not limit the perceived freedom to choose it as the trait is
not choice-based to begin with. Thus the less choice is believed to be involved in a trait,
the less discrimination will impact the self-identification of the person bearing that trait.
It can be argued that that respecting people's self-identification processes and
choices necessarily entails holding them responsible for those choices and their
Sophia Moreau argues that discrimination violates people’s freedom because it forces them to factor in
normatively extraneous features, like their sex and race, when making important decisions, like where to
live or work. Sophia Moreau, What is Discrimination?, 38 PHIL. & PUB. AFF. 143 (2010). Yet Moreau's
argument focuses on the freedom to make important decisions about how to live insulated from the costs of
discrimination, whereas the argument here refers to the freedom to choose constitutive traits.
117
Yoshino, supra note 109.
116
40
accompanying costs. In other words, integral to a person's self-identification is bearing
responsibility for the choices she makes, and when these choices are costly to employers
for examples, or to society at large, she should bear that cost. This argument is a variation
on the expensive tastes argument, but emphasizing the role of responsibility in selfidentification processes. Indeed, when people's choices entail costs (or benefits) for
individuals or society in general, this can have an impact on the appropriateness of legal
protection from discrimination based on those choices.118
3. The Intrinsic Value of Mutable Traits
Alongside the harm caused by the need to factor in the costs of certain choices,
discrimination causes an additional harm, which relates to the type of considerations that
are imposed on the person making the choice. This harm, it is claimed, is manifested in
the transformation of the intrinsic value of the discriminated-against trait. In this context,
the focus is on the corruptive effect of discrimination and the types of costs
accompanying it on traits that are constitutive of one's identity, such as loving
relationships, parenthood, or physical appearance.
Discrimination on the basis of mutable traits forces people making choices related
to these traits to factor in the price of such a choice in terms of the humiliation,
inferiority, and shame they will feel and the monetary costs. They are therefore required
to evaluate on the same scale traits that are constitutive of their identity and these costs
generated by discrimination based on those traits. Reducing constitutive traits to options
evaluated in terms of humiliation, inferiority, shame, and money irrevocably undermines
their intrinsic value.
118
In Part D, I discuss how trait-related choices can generate costs and benefits for society in general and
the normative implications.
41
This argument builds on the commodification argument advanced by Margaret
Radin and Elizabeth Anderson, amongst others.119 According to this argument, certain
relations, traits, and objects that are integral to human flourishing should not be subject to
market value because the evaluation process involved in attaching a price tag to them
causes harm to their intrinsic (or perceived) value and to one's personhood. Furthermore,
when relations, traits, or objects that are integral to identity are commodified, harm is
caused to their social value as well. To Radin, :
[M]any kinds of particulars — one's politics, work, religion, family, love,
sexuality, friendships, altruism, experiences, wisdom, moral commitments,
character and personal attributes [are] ... integral to the self. To understand any of
these as monetizable ... is to do violence to our deepest understanding of what it is
to be human.120
Thus, for example, the commodification of sex or caregiving transforms their
inherent meaning. Paid-for sex and paid-for caregiving are very different from voluntary
sex and caregiving. The introduction of market logic to sex and caregiving harms the
intrinsic value of these relations in all contexts and not only when they are paid-for.
Anderson's commodification argument adds another layer to the harm caused by
commodifying traits that are integral to our identity: this subjects them to a single logic
and scale of evaluation, that of the market, rather than a plurality,121 so that goods and
relations are assessed according to efficiency and scarcity.
Yet I show that the insights of the commodification argument do not only expose
the effect of the market logic on the intrinsic value of traits but can also help to
understand the harm caused by discrimination. Discrimination forces people to assess the
traits that generate the discrimination—even if integral to one's identity—in terms of the
potential emotional and monetary costs. This process, even if it results in the choice of
the trait, undermines the intrinsic value of traits constitutive to identity. As a result of
discrimination, then, a price tag is attached to traits and they are evaluated according to
the logic of discrimination which subjects them to the moral judgments underlying
119
ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); MARGARET J. RADIN, CONTESTED
COMMODITIES (1996); Radin & Sunder, supra note 113; Radin, Market-Inalienability, supra note 113;
Radin, Property and Personhood, supra note 113.
120
Radin, Market-Inalienability, supra note 113.
121
ANDERSON, supra note 119.
42
choice-based discrimination. This thereby transforms their intrinsic value both for those
who are forced to weigh the cost of choosing these traits that results from discrimination
and for society in general.
For example, employment discrimination on the basis of sexual orientation forces
people to consider the negative responses and emotions that would follow were they
choose a same-sex partner. This discrimination also puts a price tag on being gay in terms
of wages, hiring, and promotion opportunities. The process by which people consider
these costs and balance them against the expression of sexual orientation transforms the
intrinsic value of their loving relationships and sexual preferences, which are now
assessed in terms of the costs of discrimination. As a result, the social value of loving
relationships and sexual preferences is altered for society at large.
Similarly, when women who are considering becoming mothers factor in the
estimated 5% wage penalty122 associated with every additional child, alongside the
feelings of humiliation, inferiority, and shame of being perceived as less productive and
committed workers, the intrinsic value of motherhood is transformed: both for the
individual women who take these considerations into account when making their
decisions and for everybody else in society who is exposed to the devaluation of
motherhood.
Of course, people often take into account various types of considerations when
making choices of constitutive traits. Many women considering motherhood, for
example, take into account the potential needs of their children and the effect this would
have on their own lives. The argument that I am making here, however, is that some
types of considerations are appropriate in deciding on constitutive traits, while others
transform their meaning. Certain types of costs in choosing constitutive traits like
motherhood, such as those related to choice-based discrimination, should not be factors in
the decisions because of the effect that this will have on the intrinsic value of the trait.
Again, the harm to the intrinsic value of traits due to discrimination is generated only
when the traits are presumably mutable, i.e., the discrimination is choice-based. People
are forced to evaluate the costs associated with the discrimination because they believe
they can, to some extent, choose to avoid the traits that are discriminated against. Thus,
122
Budig & England, supra note 10.
43
the potential harm from weighing inappropriate considerations to the intrinsic value of
traits tends to be greater the more traits are allegedly voluntary.
***
In sum, when discrimination is targeted at traits that are integral to our identity, be
they mutable or not, it undermines our personhood. When these integral traits are also
mutable, additional harms follow. The first is the harm deriving from the constraints
discrimination imposes on self-identification; the second is the harm to the intrinsic value
of the traits for the person considering making the choice and for society at large.
Mutable traits of course vary in the degree to which they are integral to our identity and
perceived as such. As noted, the more fundamental a trait to identity and selfidentification, or perceive as such by society, the stronger the justification to protect
individuals possessing that trait. In some cases, there is a general consensus as to whether
a trait is constitutive of identity.123 In our society, motherhood is viewed as integral to
one’s identity. Similarly, our sexual orientation is viewed central to identity. Indeed, the
centrality to identity of certain life choices related to parenthood and sexual orientation
has recently been recognized in the case-law.124 With regard to obesity, there is no
general consensus as to the degree to which one's weight is integral to identity. In recent
years, overweight activists have increasingly argued that their weight is constitutive to
who they are as human beings.125 Yet the general tendency is to view weight as less
integral to identity than traits like motherhood or sexual orientation. Moreover, because
weight tends to be correlated with socioeconomic inequality, it is difficult to understand
On referring to intuition when determining what constitutes an integral part of one’s
personhood, see Radin, Property and Personhood, supra note 113.
123
124
See, e.g., Varnum v. Brien, 763 N.W.2d 862, 893 (Iowa 2009); In re Marriage Cases, 43 Cal.4th 757
(2008); Kerrigan &Mock v. Conn. Dep't of Pub. Health, 957 A.2d 407 (Conn. 2008); Planned Parenthood
of Southeastern Penn. v. Casey, 505 U.S. 833, 851 (1992) (adopting the undue burden test to measure the
constitutionality of restrictions on abortion while preserving the central holding in Roe v. Wade, 410 U.S.
113 (1973)).
125
Yofi Tirosh, The Right to be Fat, 12 YALE J. HEALTH POL'Y L. & ETHICS 264 (2012) (arguing that
American law should recognize the realm of body size as a new realm of liberty).
44
obesity as a product of self-identification processes.126 Thus, the connection between
obesity and self-identification is in no way clear.127
I now proceed to discuss the costs and benefits associated with some of the
choices of traits people make. I clarify when and what costs and benefits are associated
with choices of traits and then evaluate the normative implications that follow from these
costs and benefits.
C.
Costly and Beneficial Choices
As discussed earlier, some choices associated with traits produce costs and
benefits for people other than the chooser herself. When a woman chooses to have
children and take care of them, for example, people other than the woman herself - her
children and other in society who enjoy the public good generated by children and
parental investment in them - benefit from her choice. When people decide to smoke,
others, those inhaling the second-hand smoke, are injured. Moreover, when
discrimination is targeted at choices people make, it discourages others from making the
same choices. People who would otherwise become mothers or smokers, for example,
may avoid doing so because of the prices associated with making these choices due to
discrimination. Thus, when considering the prohibition of choice-based discrimination
the wide-ranging consequences for the welfare of others in society and not only the
chooser herself are ought to be assessed. The following analysis therefore focuses on
harms to people like dependent children or employers, who interact with trait choosers
and as a result may be directly affected by their choices.
The costs and benefits associated with the choices people make are relevant for a
number of reasons. First, they are relevant to the assessment of the appropriateness of
legal
protection
from
choice-based
discrimination,
because
prohibiting
this
discrimination would impact a range of people beyond the person who has chosen the
particular trait. Second, these costs and benefits are relevant in the context of the
126
Dorfman, supra note 100.
Note, also, that the correlation between inequality and weight calls for a reconsideration of the
perceptions of obesity as a mutable trait and of protection against discrimination under the traditional
paradigm of antidiscrimination law.
127
45
expensive tastes argument, according to which people should be held responsible for the
costly choices they make. Lastly, they are relevant to the issue of the harm caused to selfidentification, under the claim that people must be held responsible for the costs of their
choices if they want society to acknowledge and respect their self-identification.
1. Benefits
Some choices, such as the choice to be a caregiver, benefit others aside from the
caregiver herself. When discrimination targets such welfare-enhancing choices, some
people may be discouraged from making them; this means that harm is caused not only to
the person directly discriminated against for making the choice and to the person who
refrains from a choice she would have otherwise make, but also to others who would
have benefitted from the choice had it been made. The focus is, thus, on the effect of
choice-based discrimination on the choices some people are discouraged from making
and on the harm to others impacted by the latter's decision.
Illustrative of the nature of the harm discrimination causes to people other than
the chooser herself is the case of a woman who wants to adopt a child but decides against
this because she does not want to be discriminated against as a mother. As a result of this
decision, harm is caused to the welfare of others: children who are waiting to be adopted
and the social cost of ensuring proper care for these children until they are adopted. Note
that even in the absence of choice-based discrimination, women might make adoption
decisions without considering the benefits that adopting a child would have for others,
but rather weigh only their personal benefit. What discrimination does is penalize certain
choices by making them more costly. And because in the case of adoption, as in other
cases where the choice in question has a broad welfare-enhancing effect, choice-based
discrimination penalizes both the person making the choice and others, prohibiting the
discrimination would similarly benefit people in addition to the chooser; namely,
prohibiting discrimination would benefit not only the woman considering adoption but
also the child awaiting adoption as well as society at large.
46
2. Costs
Some choices people make, rather than or in addition to producing benefits for
others in society, will decrease the welfare of people aside from the person making the
choice. In order to accurately evaluate analyze the costs associated with choices of traits
and with according protection from choice-based discrimination, in what follows, I
distinguish amongst the four forms of this type of discrimination: taste-discrimination,
discrimination on the basis of wrongful stereotypes, statistical discrimination, and
normative discrimination. I first identify the costs, both monetary and other, that can stem
with each of these forms of discrimination and then discuss the implications of these
costs for the appropriateness of legal protection against employment choice-based
discrimination.
a. Taste Discrimination
Taste discrimination occurs when the discriminator is willing to forgo monetary
gain in order to cater to her discriminatory preferences— her likes and dislikes. Thus, an
employer is practicing taste discrimination when she decides not to hire gay men not
because she thinks they would be less productive or less committed workers but because
she has negative emotions towards gay men. From the perspective of employers who
cater to their tastes and prefer to employ certain types of people over others, there are
costs to people's trait choices; however, these costs in fact do not directly derive from the
choices but rather from the discriminatory taste of the employers. Thus, as a normative
matter, discriminatory preferences that are based purely on the discriminators negative
emotions towards devalued social groups ought not to be factored in as legitimate costs
by the law in determining when protection from choice-based discrimination is justified.
b. Discrimination on the Basis of Mistaken Stereotypes
Discrimination on the basis of mistaken stereotypes occurs when people take into
account statistically erroneous cultural beliefs about social groups in their interactions
with those targeted by these beliefs. For example, when employers erroneously assume
members of certain social groups to be better employees than members of other groups,
47
they are engaging in mistaken-stereotypes discrimination. This is the case when an
employer erroneously believes that overweight workers are generally less motivated, less
committed, and less productive than other workers. With discrimination based on
mistaken stereotypes, therefore, the costs of hiring obese workers are mistakenly
perceived by the employer. When perceptions of cost are based on mistaken beliefs and
when it is impossible for the law to distinguish between real costs and mistakes beliefs,
the perceived costs ought not to be factored in as legitimate costs by the law in
determining when protection from choice-based discrimination is justified.
c. Statistical Discrimination
Statistical Discrimination occurs when people take into account statistically
grounded beliefs about social groups in their interactions with those targeted by these
beliefs. This form of discrimination arises when employers take into account in their
employment-related decisions the average statistical divergences between different
groups of people and do not check whether they are applicable in the case of the
individual person. With statistical discrimination, every person has the particular trait in
question is assumed to be the average one and is forced to bear the average costs
associated with the trait. Thus, for example, an employer engages in statistical
discrimination against an individual mother when he takes into account in his hiring
decision statistical information on the differences in productivity, availability, and
commitment to paid work (assuming such exist) between all mothers and all nonmothers. In the context of this form of discrimination, actual costs to employers are
associated with employing certain groups of employees. If choice-based statistical
discrimination were to be prohibited in employment, employers would be forced to
evaluate each individual candidate or employee without resorting to general statistical
information. This would produce monetary costs for employers related to the evaluation
processes they would have to conduct.
Some might object to the prohibition of statistical discrimination in employment
because of these costs or, alternatively, because almost every decision involves some
form of reliance on statistical generalizations, and thus, there is nothing uniquely wrong
48
about statistical discrimination in the context of employment decisions.128 These
objections to the prohibition of statistical discrimination could apply both when
discrimination is based on non-voluntary traits such as sex and race, and when it is based
on allegedly controllable traits such as obesity and motherhood. Yet it could be
particularly argued that when traits are chosen rather than given, the costs generated by
the choice of the trait should be borne by the person who chose it (i.e., the expensive
tastes argument). There are four responses to this claim. The first response applies
regardless of whether traits are perceived to be chosen or given. The other three are
relevant only when choice-based discrimination is involved. First, although many of the
decisions people make do indeed involve statistical generalizations (as opposed to
individual evaluations), not all statistical generalizations relate to membership in a social
group that has been systematically discriminated against. This is what distinguishes
statistical sex discrimination, for example, from statistical discrimination based on eyecolor. In the case of statistical discrimination against mothers, because they are subjected
to other forms of discrimination – like discrimination on the basis of mistaken stereotypes
- statistical discrimination against mothers should also be prohibited.
Second, the costs related to evaluating employees on an individual basis are not
directly generated by the expensive choice of trait made by the individual who is
statistically discriminated against but, rather, by the choices made by all members of the
social group to which she belongs. With motherhood, for example, the evaluation costs
stem from the average costs (if any) of the choices all mothers make and not from the
choice of the individual woman regarding whether to become a mother or not. If we
acknowledge every person's right to be treated as an individual,129 we must not attribute
the average costs associated with employing mothers to the tastes of individual women,
Kasper Lippert-Rasmussen, “We Are All Different”: Statistical Discrimination and the Right to be
Treated as an Individual, 15 J. ETHICS 47 (2011) (arguing that most people accept that many forms of
statistical discrimination are unproblematic and discussing the reasons that can explain this belief); Ronald
Dworkin, Bakke’s Case: Are Quotas Unfair, in RACE AND RACISM 293 (B. Boxill ed., 2001).
129
J. Angelo Corlett, Racism and Affirmative Action, 24 J. SOC. PHIL. 163, 166 (1993) (discussing the right
to be treated as an equal, with the same degree of dignity as all other persons); ELIZABETH ANDERSON, THE
IMPERATIVE OF INTEGRATION 165 (2010) (arguing that people have the right to be treated individually and
not as statistical entities); DAVID MILLER, PRINCIPLES OF SOCIAL JUSTICE 168-69 (1999) (discussing the
right to be judged individually).
128
49
who may, in fact, be just as productive and committed as all other employees to their
jobs.
Third, the social welfare-enhancing effect of certain choices, such as caregiving
and motherhood, further supports protecting them against statistical choice-based
discrimination. Statistical discrimination makes the choice of certain traits more costly
than the choice of others, because the people who choose the former are forced to bear
the average costs associated with these choices. Thus, statistical discrimination yields
monetary costs. However, if the costly choices are also welfare–enhancing, the people
making these choices should not bear the evaluation costs that derive from assessing
them as individuals and not statistically. Otherwise, in addition to being unjust, statistical
discrimination would cause people to refrain from welfare-enhancing choices.130
Finally and most importantly, the costs for employers entailed by the prohibition
of statistical choice-based discrimination should be weighed against self-identification
considerations. In some cases of statistical discrimination on the basis of chosen traits,
self-identification considerations outweigh the costs generated for individual employers
by the need to individually evaluate job applicants. Such is the case with motherhood:
Because being a parent is a trait that constitutes identity, it is appropriate to protect
women's freedom to choose to be mothers by prohibiting employment statistical
discrimination against them regardless of the costs this would entail for employers. Thus,
even if real productivity differences do exist on average between mothers and nonmothers, protecting mothers from this discrimination is justified.
d. Normative Discrimination
Normative discrimination occurs when people act in accordance with their
normative evaluations and moral judgments. With this form of discrimination, people are
discriminated against not because it is costly to interact with them, but because their
actions are viewed by others as morally wrong. For example, when an employer does not
130
A related question is whether employers or society at large should bear the costs of evaluating
individually every person considered for employment. This is beyond the scope of this article and requires
further inquiry.
50
employ people whose choices she regards to be normatively wrong, she is willing to
forgo monetary gain to abide by her normative assessments and moral judgments and
thereby engages in normative discrimination. Similarly, the decision to buy only fairtrade products is consumer normative discrimination. People supporting fairer trade terms
and sustainability are even sometimes willing to pay a higher price for products than the
market price.
In some instances of normative discrimination, the discriminator's normative
evaluations and moral judgments do not reflect normative evaluations that the law should
factor in as legitimate considerations when determining when protection from choicebased discrimination is justified. This is the case when the evaluations and judgments rest
on erroneous biases, negative beliefs, or negative emotions. Exemplifying this is the
normative discrimination of mothers by employers who believe that mothers of young
children should not participate in the labor-force and care for their children. In such
instances, contexts, the law should not follow the normative evaluations that are based on
erroneous biases, negative beliefs, and negative emotions and normative employment
discrimination is ought to be prohibited. The more challenging cases, however, are when
the normative discrimination reflects resistance to a real harm that is caused to society in
general. A prominent example of this is the case of normative discrimination against
smokers. It is undisputed that tobacco poses a threat not only to the individuals who
choose to smoke but also to innocent bystanders.131 Research has shown that exposure to
second-hand smoke also causes disease, disability, and death.132 The choice to smoke
131
The World Health Organization states tobacco to be the second most common cause of death across the
globe, to be responsible for five million deaths every year worldwide. It has been shown to be a major risk
factor for in many serious diseases, not only cancer. See Tobacco, Health Topics, World Health
Organization: Western Pacific Region, available at http://www.wpro.who.int/health_topics/tobacco/ (last
visited on May 12, 2010);
132
A. K. Hackshaw, M. R. Law & N. J. Wald, The Accumulated Evidence on Lung Cancer and
Environmental Tobacco Smoke, 315 BRIT. MED. J. 980 (1997) (arguing that breathing other people's
tobacco smoke is a cause of lung cancer); Stephen S. Hecht, Tobacco Smoke Carcinogens and Lung
Cancer, 91 J. NAT'L CANCER INST. 1194 (1999) (discussing the mechanisms of tobacco smoke and how it
causes lung cancer); P. Vineis, M. Alavanja, P. Buffler, E. Fontham, S. Franceschi, Y. T. Gao, P. C. Gupta,
A. Hackshaw, E. Matos, J. Samet, F. Sitas, J. Smith, L. Stayner, K. Straif, M. J. Thun, H. E. Wichmann, A.
H. Wu, D. Zaridze, R. Peto & R. Doll, Tobacco and Cancer: Recent Epidemiological Evidence, 96 J. NAT'L
CANCER INST. 99 (2004) (arguing that tobacco smoke is a multipotent carcinogenic mixture that can cause
cancer in many different organs); OFFICE OF THE SURGEON GENERAL, DEPARTMENT OF HEALTH AND
HUMAN SERVICES, THE HEALTH CONSEQUENCES OF INVOLUNTARY EXPOSURE TO TOBACCO SMOKE: A
REPORT OF THE SURGEON GENERAL (2006), available at
http://www.surgeongeneral.gov/library/secondhandsmoke/index.html
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tobacco therefore impairs the general welfare by affecting the health of people who nonvoluntary inhale tobacco as second-hand smokers. Normative discrimination against
smokers may discourage people from smoking. If, indeed, the penalties imposed through
the discrimination reflect the negative effects of smoking, they force potential smokers to
take into account not only their personal costs from smoking, but also the costs to society
deriving from the choice to smoke and for which they would be penalized in the form of
employment discrimination.133
Yet even when normative discrimination reflects costs to society from particular
choices, these costs should still be weighed against the harm caused by choice-based
discrimination to people’s personhood and self-identification and to the intrinsic value of
traits constitutive of identity. As explained, the more constitutive to identity a trait, the
stronger the justification to protect people from choice-based discrimination, even at the
cost of diminished social welfare. In the case of smoking, it seems that the general view
is that smoking is not constitutive to identity, and therefore the justification for protecting
smokers from discrimination is relatively weak.
In the employment context, whereas taste discrimination and mistaken-stereotype
discrimination tend to reflect costs to employers due to the discriminated-against traits
that the law should not cater to, normative discrimination—like statistical
discrimination—reflects concerns regarding costs of the traits both to employers and
society at large. The general social costs underlying normative discrimination as was
shown, do not, however, always and necessarily justify the discrimination. In some
cases, self-identification considerations call for the protection from choice-based
normative discrimination.
D.
Application
As was shown, when determining whether protection from employment choice-
based discrimination is justified, the degree to which the discriminated traits are integral
133
Some states protect smokers from employment discrimination by prohibiting employers from
discriminating against employees (or prospective employees) based on their use of tobacco products. See,
e.g., KY. REV. STAT. ANN. § 344.040 (1994); CAL. LABOR CODE §§ 96(k) (1999) & 98.6 (2005); IND. CODE
§ 22-5-4-1 et seq. (2006); VA. CODE ANN. § 2.2-2902 (1989).
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to our identity and the costs and benefits to other people and to society at large, are ought
to be considered. I now proceed to discuss these considerations in the cases of
employment discrimination against the obese, gay men and women, and mothers.
1. Motherhood
When mothers are discriminated against in the labor-force, they suffer from
economic penalties and their personhood is harmed. Additional harms follow from the
discrimination of mothers to the self-identification of all the women who are considering
becoming mothers but decide against this because they do not want to be discriminated
against. Lastly, the intrinsic value of motherhood is harmed as a result of employment
discrimination against mothers both for the women who consider motherhood and for
society at large.
Because motherhood is perceived in our society to be a trait constitutive of
identity, the harms to women’s personhood and self-identification, and the general harm
to the intrinsic value of motherhood provide a strong justification for the prohibition of
employment discrimination against mothers. Additional justification is provided by the
general consensus that motherhood does not benefit only the mother but rather other
people in society – the children and other members in society who benefit from the public
good generated by the maternal investment in children.
Protecting mothers from employment discrimination imposes costs on the
employers, who believe them to be less competent and committed workers than nonmothers; When mothers are protected from discrimination, employers are required to pay
the costs of evaluating the competence and commitment of each individual mother.
Nonetheless, even if the beliefs about mothers’ competence and commitment were
statistically accurate, because of the centrality of motherhood to women’s identity, the
law should prohibit employment discrimination against mothers and require employers to
bear the costs of evaluating the work competence and commitment of each individual
mother.
2. Sexual Orientation
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When gay men (and women) are discriminated against in the labor-force, they
suffer from economic penalties and their personhood is harmed. Additional harm is
caused to anyone who considers certain choices associated with homosexuality (like
having a same-sex partner) but decides against this because he does not want to be
discriminated against. The intrinsic value of loving relations is harmed as result of
employment discrimination on the basis of sexual orientation for everybody who
considers choices associated with homosexuality and for society at large. Because sexual
orientation is viewed by society as a trait constitutive of identity, the harms to one’s
personhood and self-justification and the general harm to the intrinsic value of loving
relations provide a strong justification for the protection of gay men and women from
employment discrimination.
Often, employment discrimination against gay men tends to be generated by the
discriminatory taste of employers who prefer not to hire gay men. In these cases, the
costs generated by employers’ negative emptions toward gay men ought not to be
factored in as legitimate costs by the law in determining whether protection from
employment discrimination is justified. Thus, in these cases, employment discrimination
on the basis of sexual orientation should be prohibited by law. Sometimes nonetheless,
employment discrimination against gay men is the result of the discriminatory taste of
customers who prefer not to be served by gay men. In this context, employers will bear
monetary costs if they employ gay men. These costs should be weighed against the harm
caused by discrimination to people’s personhood and self-identification and to the
intrinsic value of love relations. Because sexual orientation is constitutive of identity,
discrimination on its basis must also be prohibited.
3. Obesity
When the obese are discriminated against in the labor-force, they suffer from
economic penalties and their personhood is harmed. Additional harm is caused to any
person who considers certain lifestyle choices but decides against this because she does
not want to become obese and to be discriminated against. The intrinsic value of physical
appearance is harmed as a result of employment discrimination against the obese for
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everybody who considers lifestyle choices associated with obesity and for society at
large. Unlike with motherhood and with sexual orientation however, with obesity there is
no general consensus as to the degree to which one's weight is integral to identity. Thus,
it is harder to justify the prohibition of employment discrimination against the obese.
CONCLUSION
Choice-based discrimination disadvantages not only the person directly
discriminated against for holding the trait in question, but also anyone considering
choosing that trait and, sometimes, even causes harm to society at large. With certain
traits that are constitutive of identity, discrimination harms the trait-bearer's personhood
and self-identification and transforms the intrinsic value of the trait.
These harms, some of which are unique to traits that are perceived to be to at least
to some degree controllable, have not been comprehensively addressed by lawmakers or
legal scholars. As a result, antidiscrimination law has failed to acknowledge the
phenomenon of choice-based discrimination and to normatively address the issues that
arise when people are discriminated on the basis of the traits they choose.
The main argument put forth in this article is that the more integral a trait to one's
identity and the more central the freedom to choose that trait to one's self-identification,
the more justified it is to protect individuals bearing the trait from choice-based
discrimination. In certain cases, choices of or relating to traits produce costs and benefits
not only for the person making the choice, but also for others and society at large. These
additional costs and benefits should be taken into account as well when considering the
appropriateness of according legal protection from discrimination based on these
particular traits.
Discrimination against gay men and discrimination against mothers are prominent
cases of discrimination on the basis of traits that are generally perceived to be constitutive
of identity. Therefore, the harm to personhood and self-identification associated with
these two types of discrimination justifies protection from employment discrimination,
even if in some circumstances that protection will be costly to individual employers or to
society. With discrimination against the obese there is less of a consensus as to whether
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obesity is constitutive of identity. Therefore, it is harder to justify the prohibition of
employment discrimination against the obese.
The Article proposes a conceptual framework that is not limited to employment
discrimination against the obese, gay men and mothers. There are other social groups that
are discriminated against on the basis of choices of traits. If considerations of harms to
people’s self-identification and to the intrinsic value of traits are introduced to
antidiscrimination law, the prohibition of other types of choice-based discrimination–
such as discrimination on the basis of marital status or political view - are ought to be
considered. Moreover, some of the arguments made in the paper may be applied to other
fields of law - such as tax or welfare law – when the controllability of traits is addressed
as a justification for penalties imposed by the state.
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