By Juan Carlos Benito-Sanchez
The first entry of this blog post series advanced some thoughts regarding the distributive function of antidiscrimination norms and the need for considering alternative criteria whenever certain social goods like health or housing are at stake. I suggested that these social goods should be distributed on the basis of need and socioeconomic status. The secondentry examined a first normative device to incorporate socioeconomic criteria into antidiscrimination law: public sector equality duties. This third entry focuses on a second device: socioeconomic disadvantage as a prohibited discrimination ground.
The recognition of socioeconomic disadvantage as a prohibited ground of discrimination would entail, primarily, that this concept is included besides already consolidated “status” grounds (like gender, racial or ethnic origin, disability, etc.) in the list of criteria on the basis of which discrimination is legally proscribed. But, more importantly, this would also require that this prohibition is rendered effective, by making the notion of socioeconomic disadvantage sufficiently concrete to be relied upon when making findings of discrimination in particular instances.
This would help remedy the situation whereby public and private action which discriminates against low-income groups falls outside the scope of antidiscrimination norms if those groups cannot be defined at the same time by at least one of the “status” grounds. This occurs at the European Union level, where antidiscrimination legislation prohibits discriminatory treatment exclusively on the grounds of racial or ethnic origin, gender, disability, age, religion or belief, and sexual orientation. As a consequence, priority is given to groups who can “gather under the banner” of one of the existing grounds, to the detriment of those living in poverty more generally. In other cases, socioeconomic disadvantage features already in the list of prohibited grounds, but has not been sufficiently developed and concretised as to be able to provide an effective protection for these groups.
Looking at international human rights law, the Universal Declaration of Human Rights prohibits distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. A similar prohibition is contained both in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
According to the UN Committee on Economic, Social and Cultural Rights, the clause “other status” covers economic and social situation, in the sense that:
“Individuals and groups of individuals must not be arbitrarily treated on account of belonging to a certain economic or social group or strata within society. A person’s social and economic situation when living in poverty or being homeless may result in pervasive discrimination, stigmatization and negative stereotyping.”
At the Council of Europe level, within the framework of the European Social Charter, the collective complaint in the case of FIDH v. Ireland illustrates this point. The complaint concerned the lack of adequacy, habitability, and suitability of local authority housing in several council estates. The complainant organisation argued that the sale of local authority housing stock during the past decades had led to a residualisation of this housing modality, which increasingly accommodates socioeconomically disadvantaged individuals and families.
The European Committee of Social Rights recently found in this case that:
“[It] cannot in principle exclude that certain individuals or groups are, in the present case, specially hampered or prevented from enjoying the right to family housing of an adequate standard on the grounds of their socio-economic or health status, or other personal conditions. This could concern, for example, families living in, or at risk of, poverty, who cannot avoid being allocated local authority housing, or persons with disabilities.”
However, in that particular case, the Committee deemed that the allegations had not been sufficiently proven: more data or evidence would be needed as regards the specific ground of discrimination, the discriminated group or groups, and the comparator group or groups.
On the other hand, the recognition of socioeconomic criteria as prohibited grounds in antidiscrimination norms is not unbeknownst among European national legal orders. In fact, nineteen out of thirty-five European countries include, at least formally, criteria such as “social standing,” “social class,” “social status,” “financial status,” or “social condition” as prohibited grounds of discrimination in their domestic legislations.
Even though these criteria may be formally recognised in many legal orders, it is not clear whether they are actually capable of providing effective protection against socioeconomically disadvantaged individuals. As suggested above, one of the major problems evidenced by research is how to render this notion more tangible, and how to mobilise it to combat specific instances of socioeconomic discrimination.
In the field of housing, this ground may be interpreted in the sense that landlords are prevented from discriminating against potential tenants on the basis of their sources of income. Whereas verifying their solvability and creditworthiness is acceptable, landlords cannot reject a solvable individual arguing that their income is made up of of social, family, or disability allowances, instead of “gainful employment.” This solution has been adopted in Belgium, and, outside of Europe, in the case of the Canadian province of Quebec.
Antidiscrimination norms have a powerful redistributive thrust: they aim to correct distributive decisions made by key actors and affecting basic social goods. To do so, they select a distributive criterion and consider it the “right” one. Whereas current antidiscrimination norms, in particular at the EU level, are very much focused on merit or achievement, I have argued that certain social goods like health or housing should be distributed on the basis of need and socioeconomic status. To do so, several strategies can be used.
The two strategies presented in this blog post series (public sector equality duties, socioeconomic disadvantage as a prohibited discrimination ground) evidence that antidiscrimination law is conceptually equipped to target differences in treatment based on socioeconomic disadvantage. The issue is rather one of modifying existing norms, developing certain elements thereof, and enforcing them. Between these two strategies, socioeconomic disadvantage as a prohibited discrimination ground appears to be more comprehensive and effective, but it is at the same time harder to implement, and more likely to pose difficulties — in particular at the European Union level.
This does not mean that antidiscrimination law alone will succeed in combating socioeconomic disadvantage: public policies striving towards resource redistribution and the fulfilment of economic, social, and cultural rights will be required to reach this goal. Less ambitiously, this blog post series advances the argument that antidiscrimination law can be a powerful tool to address socioeconomic disadvantage, if taken seriously.