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.
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