Offers They (Literally) Can’t Refuse: Searching for Balance Between Contractual Freedom and Anti-Discrimination Laws and Policies

The paper investigates the extent and relevance of the impact of anti-discrimination laws on contractual autonomy, with particular reference to businesses, trying to answer a various set of questions connected to the so-called horizontal application of fundamental rights. Such questions all revolve around the extent to which the law should limit the freedom of contract, of economic initiative and of speech entitled to businesses, in order to pursue anti-discrimination goals.
The article addresses the topic from a comparative perspective; most of the cases presented come from real-life news reports, as well from existing litigation, in several jurisdictions. It always considers both the law and the case-law as they are, and as they should arguably be.
The conclusion submits that anti-discrimination-driven policies have been interfering too extensively on contractual freedom and freedom of enterprise and speech of businesses, and makes a case for a shift in the current balance.