PAST ARTICLES AND EDITORIAL BOARDS

Freedom of Contract and the Remedy of Forced Hiring:
A Comparative Assessment of German and American Anti-Discrimination Law
Caroline R. Fredrickson
4 J.L. & Pol'y 1 (1995)
The focus of this essay is on the intersection of the principle of freedom of contract with the guarantee of equal treatment contained in Article Three of the German Constitution. The essay posits that women and minority groups remain disadvantaged in the workplace despite Article Three's decree of equality. Behind the unequal treatment of women and minorities stands the principle of freedom of contract. While virtually every aspect of the labor relationship in Germany is subject to controls--it remains that in the areas of hiring, wages and promotions-- employers may routinely discriminate on the basis of race or gender. Freedom of contract is an unpersuasive justification for the disparate treatment of women and minorities because it is a notion that has diminished in force and relevance in Germany.

The essay compares the restrictive German view of freedom of contract with the more libertarian view prevalent in America. The comparison reveals that while freedom of contract is more highly respected in America, the remedies available to minorities and women under Title VII of the Civil Rights Act afford them far more protection. The essay concludes that for Article Three to have meaning, discrimination based on race or gender should not remain immune from statutory limitations.