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Home > Publications > Working Paper Series > Offers they can’t refuse: a (negative) assessment of the impact on business (...)

Offers they can’t refuse: a (negative) assessment of the impact on business and society at-large of the recent fortune of anti-discrimination laws and policies

By Riccardo de Caria

Thursday 29 July 2021, by Riccardo de Caria

WP 2021-04.

The article considers the relationship and balance between freedom of economic initiative and obligations deriving from anti-discrimination laws. After providing a theoretical framework of the problem of the limits to contractual autonomy arising from the horizontal application of fundamental rights (Drittwirkung), the work focuses on its most recent developments, especially in case law, from a comparative perspective. It identifies the paradoxes and logical inconsistencies that characterise the traditional approaches, and puts forward an alternative conceptual framework.

Executive summary

• Anti-discrimination laws do not only expand the scope of rights. When applied to the relationships between private individuals or businesses, they also restrict other rights and freedoms.
• In the past, some studies considered the theoretical shortcomings and practical drawbacks of the compulsory application of anti-discrimination laws to private relations. Given the current remarkable expansion of the scope of such laws, however, scholars and policy-makers need to examine even more carefully how the prohibition to discriminate against their customers, suppliers, and workers affects businesses.
• As a result of this new wave of anti-discrimination prohibitions, some important court cases have tried to balance equality rights and the economic rights of companies and entrepreneurs.
• The most important cases concern businesses that provide services for wedding ceremonies and refused to perform their activity for gay marriages; on the other hand. Another significant set of cases arise in the context of new technologies, particularly with regard to the sharing economy, online speech, and artificial intelligence.
• Both in the US and in the EU, courts seem to have had a hard time when searching for a satisfactory balance. As a result, the resulting picture is not particularly clear.
• However, the analysis of the most important cases and of the public policy debate surrounding them reveals the existence of some remarkable paradoxes and contradictions on the opposite sides of the ideological spectrum. Progressives tend to prioritise freedom of expression and association over economic freedoms. Of course, this view has encouraged some courts to conclude that the social media cannot discriminate against pro-fascist groups. Conservatives tend to stand for the rights of businesses to choose with whom they want to interact.
• This paper suggests that it would be preferable to adopt a different, hands-off approach, and let businesses free to choose and possibly discriminate against whomever they want.

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