Discrimination, Freedom, and the Limits of Contract
| DOI | 10.1177/135822910901000404 |
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| Author | Gillian Demeyere |
International Journal
of
Discrimination and the Law, 2009,
Vol.
10,
p.
219
1358-2291/2009 $10
© 2009 A B Academic Publishers. Printed in Great Britain
DISCRIMINATION,
FREEDOM,
AND
THE
LIMITS
OF
CONTRACT
GILLIAN DEMEYERE
F acuity
of
Law, University
of
Western Ontario
ABSTRACT
219
This article offers a challenge to the widely held view that legislative prohibitions
against discrimination in employment represent a restriction
on
freedom
of
contract.
Rather than engage in the political debate concerning the justifiability
of
such a
restriction on an employer's contracting freedom, I instead argue
how
the apparent
conflict between the individual's claim to equality and the employer's claim to
freedom
of
contract might prove to
be
illusory. I argue that the freedom in freedom
of
contract is best understood, as it is defined in the republican tradition, in terms
of
immunity from interference on an arbitrary basis (freedom as "nondomination").
On
this understanding
of
freedom, anti -discrimination law poses no threat to contracting
freedom since discriminatory hiring and workplace practices fall outside the scope
of
the employer's freedom
of
contract. The article focuses mainly on Canadian law
but the analysis and conclusions are generalizable to other common law jurisdictions
where the employment relationship is subject to a prohibition against discrimination.
INTRODUCTION
Richard Epstein, in his vigorous attack
on
legislative prohibitions against
discrimination in employment, states that "[a]n anti-discrimination law
is the antithesis
of
freedom
of
contract" (Epstein 1992, 3
).
1 Proponents
of
such legislative measures seem to agree. Samantha Besson, who writes
in support
of
anti-discrimination law, writes that "[a]nti-discrimination
law necessarily interferes with freedom
of
contract" (Besson 2001, 269).
Where the legislation's critics and its proponents part ways is on the ques-
tion
of
the justifiability
of
the restriction
on
freedom
of
contract. The
critics typically claim that the state has no business regulating private
transactions between private actors while the supporters argue that the
individual employee's interest in equality justifies the imposition
of
external constraints
on
the employer's right to contract with whomever
and
on
whatever terms it chooses.
2
Both
sides
of
the debate thus
subscribe to what I will call in this paper the conflict thesis: the view that
prohibitions against discrimination in employment are in conflict with
the principle
of
freedom
of
contract.
My aim in this paper is to offer a challenge to the conflict thesis.
Rather than engage in the political debate to which the conflict thesis
gives rise, I will instead suggest how the apparent conflict between the
individual's claim to equality and the employer's claim to freedom
of
contract might prove to be illusory. In short,
my
argument is that while
the conflict thesis subscribes to a view
of
freedom, most explicitly
defended by Thomas Hobbes, (Hobbes 1994) as the absence
of
actual
interference by compulsion or coercion (freedom as "noninterference"),
the freedom in freedom
of
contract is more appropriately understood as
immunity from interference on an arbitrary basis (freedom as "nondom-
ination"), the conception
of
freedom associated with thinkers in the
republican tradition, most recently Philip Pettit (Petit 1997). I will then
suggest how, once the freedom in freedom
of
contract is understood in
terms
of
nondomination, the apparent conflict between anti-discrimination
law and freedom
of
contract begins to dissolve.
I begin with a quick explanation
of
the conflict thesis itself. I then
tum
to consider the conflict between anti-discrimination law and
freedom
of
contract as an instance
of
a conflict between public values
(an egalitarian distribution
of
employment opportunities) and private
law principles (the right, enshrined in the classical conception
of
freedom
of
contract, to contract with whomever we choose, on what-
ever terms we may choose,
or
to choose to not contract at
al1.)
3 Relying
on
Aharon Barak's taxonomy
of
models for the application
of
public
values to private law, I propose an approach to the conflict thesis that
holds potential for dissolving the conflict. I then introduce the repub-
lican conception
of
freedom as nondomination and make a case for it
being an appropriate conception
of
the freedom in freedom
of
contract.
In
the final two sections, I revisit the conflict thesis and suggest how on
this rethinking
of
freedom
of
contract there is arguably no conflict with
anti-discrimination law. While
my
discussion throughout focuses on the
Canadian context, the analysis is generalizable to other common law
jurisdictions where the employment relationship is subject to a legal
prohibition against discrimination.
THE CONFLICT THESIS
The second
half
of
the twentieth century saw the introduction and growth
of
significant statutory reforms to the law
of
employment. Perhaps the
most controversial
of
these reforms is the introduction
of
statutory prohi-
bitions against discrimination in employment.4 In Canada, these
prohibitions are found in provincial legislation, such as the Ontario
Human Rights Code,5 and in the federal Human Rights Act.6 While the
scope and application
of
these statutes vary, their common effect is to
place limits
on
what employers can do both at the point
of
hiring and in
To continue reading
Request your trial