Discrimination Gone Too Far: The Implications of Defining Mutability in Court

While most Americans would agree that one should not be blatantly discriminated against on the basis of sex, race, or religion, as an egalitarian maxim it becomes much more difficult to maintain when seemingly alterable and/or non-biological traits come under scrutiny. Defining aspects of a person such as language use, cultural practices, or body type, for example, leave open the debate over what characteristics are, in fact, given legal protection against discrimination. As a result of this ambiguous nature, as a nation, we are starting to see serious civil rights infringements manifesting from deeply ingrained subconscious biases, further perpetuated by legal distinctions that protect some people from discrimination and leave others completely vulnerable.

The United States Court of Appeals for the Eleventh Circuit has recently come down on this very issue of ambiguous discrimination, affirming a lower court’s decision to dismiss a complaint regarding an alleged racial discrimination incident filed by the Equal Employment Opportunity Commission (EEOC). The 2016 case Equal Employment Opportunity Commission v. Catastrophe Management Solution concerns an employment offer to Chasity Jones--an African-American woman-- which was rescinded after she refused to cut off her dreadlocks in conformity with a “race-neutral grooming policy” held by the company. [1] The EEOC became involved and a filed the complaint on Ms. Jones’s behalf, saying, “a prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.” The Court of Appeals, in this case, agreed with the lower court’s reasoning that Title VII of the Civil Rights Act of 1964 protects against discrimination on the basis immutable traits such as race and national origin, but distinguishes these traits from their mutable counterparts, with dreadlocks falling into the latter. [2]

It is essential to understand the definition of immutable and mutable traits in relation to discrimination laws. Title VII of the Civil Rights Act of 1964, one of the most significant anti-discrimination statutes passed by the federal government, prohibits the refusal to hire or otherwise discriminate against individuals based on the individual's race, color, religion, sex, or national origin. [3] These traits are protected in such a way since they fall under the category of ‘immutability,’ which is defined by the Supreme Court in a twofold manner. The first definition of these traits outlines them as being “an accident of birth,” meaning that they could not be altered in any way by the individual. The second definition takes a more direct approach, ascribing to immutable traits a higher specificity: “a characteristic that is either unchangeable in absolute terms or so fundamental to identity or conscience that individuals effectively cannot and should not be required to change it.” [4]

The Supreme Court case Frontiero v. Richardson (1973) demonstrates the Court’s use of the immutability claim in order to protect against sex-based discrimination. This case centered around a federal law that made arbitrary distinctions between dependency allowances for spouses of military members on the basis of sex: wives of military husbands were automatically considered dependents, but husbands of military wives were only considered dependents if they relied on their spouse for over one half of their income. [5] In the 8-1 decision, the Court ruled that sex--along with race and national origin--was an immutable characteristic, and therefore struck down the federal statute in question. [6]

In the same way that the courts have defined immutable traits, they have also defined its counterpart in “mutable” traits. The case Garcia v. Gloor (1980), decided by the Court of Appeals for the Fifth Circuit, exemplified the distinction between immutable and mutable traits quite clearly. In this case, a man was fired due to his incessant breaking of a company “English only” rule in the workplace, [7] and after filing a lawsuit for discrimination, the Fifth Circuit ruled against the man. Ruling that language use does not constitute an immutable trait, the Court of Appeals further clarified this distinction, saying, “for [bilingual individuals], language is a matter of personal preference rather than an essential aspect of national origin and compliance with the rules is not a burdensome term or condition of employment.” [8]

Another instance in which the judicial system partitioned traits that do and do not receive anti-discrimination protection came during the Plyler v. Doe (1982). In this case, 1975 revision to Texas education law came under fire, as it allowed the state to withhold funds from local school districts that were primarily used to educate children of illegal immigrants. Although eventually striking down the statute on the basis that Texas failed to prove that the law served a compelling state interest, [9] in its majority opinion the Court took the opportunity to note, “...undocumented status is not an immutable characteristic because it is the product of intentional conduct.” [10]

While it may seem intuitive that some characteristics are protected by the law from discrimination and others not, the quintessential issue here arises when you consider the real-life implications of these distinctions. Lost in the abyss of legal jargon, it becomes hard to keep sight of what truly happened as a result of the aforementioned cases: a man was fired for speaking Spanish, students were denied resources in school for being illegal immigrants, and a woman was fired for wearing her hair in a natural style. Shocking to some that a black woman was targeted in the workplace solely because of her hair, this ruling calls into question that which Americans think they know about discrimination laws and what they truly protect. From what appears to be a ruling that affirms the existence of subconscious prejudices, the glimpse into the future of equal protection remains unclear as marginalized communities keep falling through the cracks in unsuccessful anti-discrimination lawsuits.


[1] Gutierrez-Morfin, Noel. "U.S. Court Rules Dreadlock Ban During Hiring Process Is Legal." NBC News, September 21, 2016. Accessed April 3, 2019. https://www.nbcnews.com/news/nbcblk/u-s-court-rules-dreadlock-ban-during-hiring-process-legal-n652211.

[2] Equal Employment Opportunity Commission v. Catastrophe Management Solutions (United States Court of Appeals for the 11th Circuit September 15, 2016).

[3] Civil Rights Act of 1964, § 703 (Equal Employment Opportunity Commission 1964).

[4] Hoffman, Sharona. The Importance of Immutability in Employment Discrimination Law. Case Western Reserve University School of Law. 2011. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=faculty_publications.

[5] "Frontiero v. Richardson." Oyez. Accessed April 2, 2019. https://www.oyez.org/cases/1972/71-1694.

[6] Ibid., 4.

[7] Garica v. Gloor (United States Court of Appeals for the Fifth Circuit May 22, 1980).

[8] Clawson, Dan. Garcia v. Spun Steak Co. : The Ninth Circuit Requires That Title VII Plaintiffs Prove the Adverse Effect of a Challenged EnglishOnly Workplace Rule. Seattle University School of Law. https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1424&context=sulr.

[9] "Plyler v. Doe." Oyez. Accessed April 1, 2019. https://www.oyez.org/cases/1981/80-1538.

[10] Ibid., 4.