For the most part, I think you fairly state the state of existing claims/law here. Except, I would point out that (while not explicit) this idea of immutable characteristic is inherent in many of the categories that we have decided are protected. Items that are “choices” get labeled differently in many instances than factors you are born with. The rubber hits the road, I think, in some areas like obesity – disability or choice?

When I say that the grooming/dress cases have some difficult rationale, it’s that the sub rosa interest is often gender conformity – you must wear makeup, wear certain clothes that make you look feminine, etc. (i.e. Jesperson v. Harrah’s) or a policy that seems to disadvantage a group (Paulette Caldwell’s “hair piece” on how policies against dreadlocks/braids are a race issue). So that’s what I was thinking of there.

Re: body art and prejudice. I admitted in the post that I struggled with this. If someone is fired for not complying with a dress or grooming policy because of tattoos, it may be “discrimination” but certainly a discrimination less invidious than that of race, which was what I was trying to convey in that part that you are quoting. There is, though, this element of “freedom of expression.” And, I think we can agree, this is not a value that is currently present in US employment law. There may be both good and bad parts to that statement, but I think that’s where I was feeling the tension – between the idea of the individual’s concept of identity and the doctrine which does not go in that direction whatever.

I’m curious about whether you have any cases in mind that have difficult to justify rationales?

The definition of “color” under Title VII is pretty well established, and tattoos would simply not be covered. Also (under existing law) whether or not a characteristic is immutable is pretty irrelevant to determining whether discrimination is lawful or not. Discrimination against someone who is ugly, or tall, or blonde is generally legal (so long as gender, race, disability, etc. are not motivating factors).

Finally, does your suggestion that body art is not “freighted with longstanding prejudice that we need to correct through the legal system” mean you don’t think there is longstanding prejudice, or that you don’t think it needs legal correction?