Equal Opportunity Or More Opportunity?

Epstein does not argue that the state has no role to play in employment law. The state should guarantee ‘civil capacity’ – the right to participate in a social order organised under the law of property, contract and tort. Employment law should enforce the contractual terms emerging from private agreements, entered into willingly and without coercion. But, when governments tinker with employment relations beyond this, no matter how benevolent the intentions, the results can be damaging:

‘If you wish to create opportunity the best rule is: don’t worry about equal opportunity if that quest will reduce overall opportunity. It will make it harder in some cases for members of protected classes to be hired, because it is harder to fire them once on the job. Concentrate on eliminating barriers in order to create opportunity for all.’

In his commentary, Simon Deakin argues that competition and the enforcement of contracts alone are not sufficient to eliminate discrimination. Legislation has a role to play in unravelling persistent forms of discrimination and opening up labour markets to disadvantaged groups. This extends the scope of the market and benefits all participants.