Prohibition of Discrimination in Contract Law

• Applicant: Dr. Duygu Damar
• Subject Area: Private Law
• Term: Funded in 2017
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 370918665

The European Anti-Discrimination Directives have been implemented into German law by the German Equality Act of 14 August 2006 (AGG - Allgemeines Gleichbehandlungsgesetz). According to AGG, discrimination is prohibited not only in labor law but also in contract law. Within the framework of this post-doc thesis, the prohibition of discrimination in contract law will be approached from the perspectives of legal philosophy, economic analysis of law and legal comparison. For this purpose, first, the underlying principles, such as the private autonomy, freedom of contract and discrimination will be examined. Thereby, certain important legal policy issues, such as whether the prohibition of discrimination in contract law constitutes a massive intrusion into freedom of contract will be addressed in detail. The key role that the contract plays in the European private law society will serve as the starting point in this analysis. The US anti-discrimination law and contract theory will provide the basis for legal comparison.Subsequently, an in-depth analysis of the prohibition of discrimination in German contract law (§§ 19-20 AGG) will be provided. The sanctions applicable in case of a violation of the prohibition set in § 19 AGG will also be handled in this context. The sanctions which were provided by the Act are compensation of material and immaterial damages (§ 21 para. 1 AGG) and claim for elimination of discrimination or for an injunctive relief (§ 21 para. 1 AGG). There is especially a heated debate in German literature based on § 21 AGG: Does the claim for elimination of discrimination or for an injunctive relief result in the obligation to contract, if the discrimination takes place during the pre-contractual phase? This leading question will serve as the main aspect in the post-doc thesis and will be comparatively studied from the legal-philosophical and legal economics points of view.

• DFG Programme: Research Fellowships
• International Connection: USA
• Host: Professor Daniel Markovits