Equality in employment and the limits of freedom of contract

The prevailing view has it that legislative prohibitions against discrimination in employment are inconsistent with the principle of freedom of contract. I call this view the "conflict thesis" because it sees the legislation to be in conflict with an employer's freedom of contract. My aim here is to challenge the conflict thesis, by examining and questioning the assumptions upon which it rests. I suggest how it might be said that the legislative prohibitions against discrimination in employment are consistent with, and perhaps even required by, the principle of freedom of contract. I first offer a reconciliation of the principle of freedom of contract with the employer's duty, under human rights legislation, to accommodate individuals who, in virtue of their membership in a group protected under the legislation, are adversely affected by the employer's terms and conditions of employment. I then argue that one can understand the legislative prohibition against discrimination in hiring to similarly issue from respect for the principle of freedom of contract, once the freedom in "freedom of contract" is understood in terms of non-domination, as it is on the republican conception and as, I argue, it must, given the constitutive nature of the law of contract.