Employment Law by David Cabrelli

Author:David Cabrelli [Cabrelli, David]
Language: eng
Format: epub
ISBN: 9780192551306
Publisher: OUP Oxford
Published: 2021-12-28T00:00:00+00:00

Which groups should equality laws ‘protect’?

A separate question worthy of our consideration concerns the groups that should fall within the protective scope of labour laws. For example, we have already drawn attention to the fact that race and sex are protected characteristics recognized by the law. One theory claims that the criteria of race and sex share something in common, namely ‘immutability’. The argument from ‘immutability’ provides that where employer decision-making on job hires, promotion, and worker discharges is motivated by criteria that people cannot change about themselves and which are unchosen, then workplace practices discriminating against people in these groups ought to be addressed by discrimination laws. These criteria are seen to be intrinsic parts of an individual’s identity and immutable: hence the term ‘the politics of identity’. For example, individuals belonging to a particular racial or ethnic group or who are female neither have the capacity to change these characteristics, nor did they choose the race or biological sex that they were born with. In such circumstances, the immutability theory posits that if employers take into account these criteria in their decision-making, that is illegitimate since it demeans and debases the dignity of individuals. In the final analysis, legal steps—via discrimination laws—are essential to discourage employers from considering them in their decision-making processes.

However, if we take the immutability theory to its logical conclusion, it could easily lead to the ‘proliferation of the protectorate’, in the memorable words of professor of law Owen Fiss. In essence, this means that there could be scope for limitless expansion of the protected characteristics recognized by the law. For example, the criteria of disability, sexual orientation, and age are also immutable characteristics and as such, by this theory, should be added to the list of protected groups. And where then do we draw the line? For example, why should ‘obesity’ and ‘polyamory’ not be included? So far, a line has been drawn by legal systems that extends beyond the classic ‘core’ of race and sex. For example, in the USA and European Union, workers belonging to groups such as the disabled, or who are lesbian, gay, bisexual, or transsexual, are recognized as having legal discrimination protection, as is the criterion of age protected. In the UK and EU, religious beliefs are also legally protected.

Another challenge for the immutability premise is that we might question whether these characteristics of race, sex, disability, sexual orientation, age, and religious belief can each be treated as truly immutable. For instance, some would dismiss the idea that a religious belief or someone’s sex or sexual orientation are immutable, since they are open to change, for example by converting from Buddhism to Christianity, undergoing a sex-change operation, or deciding to divorce one’s husband and take a lesbian lover.

Of course, it is disputed whether these characteristics are indeed mutable, but if we leave our reservations to one side for a moment and accept this claim, what other underlying feature or factor might each of these criteria share in common? A

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