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By Dr Juan Carlos Benito Sanchez

This three-part series is on socioeconomic discrimination and is authored by Dr Juan Carlos Benito Sanchez, an independent human rights law researcher and consultant. His PhD undertaken at UCLouvain (Belgium) was titled ‘Securing Housing for All in Diverse European Societies: A Legal Analysis of Antidiscrimination Norms Applied to the Housing Context’. @jcbensan

This series of three blog posts reproduces some of the ideas I am working with in the framework of my doctoral research. In particular, the second part of my PhD dissertation deals with how to distribute housing from a human rights perspective, taking into account political and legal theory. It examines whether housing should be distributed on the basis of “need,” and how to effectively incorporate socioeconomic criteria into antidiscrimination law. It further contextualises this issue by distinguishing between interindividual relationships and state policies, against the backdrop of state-sponsored housing commodification and financialisation processes.

Antidiscrimination law has a powerful redistributive thrust. While antidiscrimination norms pursue other goals as well—for instance, the recognition of devalued cultural identities or the effective political and social participation of individuals and groups—, redistribution is the main rationale underpinning this type of norms. Through concepts like direct and indirect discrimination, antidiscrimination laws try to ensure that important distributive decisions made by key distributive agents and affecting social goods are not taken on the basis of certain protected characteristics or in a way that disproportionately excludes certain disadvantaged groups without an appropriate justification. For instance, if an employer rejects an applicant on the basis of their gender or their ethnic origin, the employer’s decision to distribute employment on the basis of the “wrong” criterion will be prohibited.

Operating this distinction entails that antidiscrimination norms select a particular criterion and consider it the “correct” parameter on which distributive decisions are to be made. The idea of social goods refers, roughly speaking, to elements which we have determined are necessary to uphold human dignity and to allow individual agency with regard to one’s own valued choices. Social goods tend to be aligned with social rights: housing, health, food, education, employment, etc.

There is nothing, however, preventing us from distributing different social goods according to different criteria. Employment, for instance, should arguably be distributed on a different basis than health or housing. While it is widely regarded that the former is to be allocated on the basis of “merit” or “achievement,” it does not make much sense to evaluate how meritorious an individual has been when determining access to health care or to adequate housing. Instead of examining an individual’s skills and qualifications, as is common in the field of employment and occupation, other social goods seem to require alternative distributive patterns.

Unfortunately, most antidiscrimination norms are blind to this distinction. They aim to correct distributive decisions by looking at a single, universal criterion applied across the board to all social goods coming under their scope. This criterion is none other than merit or achievement, reflecting the fact that antidiscrimination law was initially developed to address employment discrimination. This focus is clear in the context of European Union law, where nondiscrimination was historically geared towards ensuring freedom of movement and disallowing competitive disadvantages between Member States.

Many critics of this notion have argued—convincingly, in my view—that the notion of merit represents a one-sided value horizon determined by dominant social groups. In other words, the patterns of social and cultural behaviour of dominant groups are rewarded through merit, whereas those of dominated groups are penalised. As a consequence, merit serves to assert control and reaffirm entrenched inequalities. Going a step beyond, some authors like Axel Honneth have argued that the individualistic achievement principle is the normative resource of a bourgeois-capitalistic society for morally justifying the extremely unequal distribution of life chances and goods. Whereas a lesser share of socially available goods is guaranteed to individuals in the form of social rights, the far greater share continues to be distributed according to the capitalist achievement principle.

I argue that housing in particular (but also other social goods like health or food) should be rather distributed on the basis of need. In the context of our market-based societies, and more specifically within a neoliberal paradigm where housing is subject to strong trends of commodification and financialisation, “need” largely translates into the idea of socioeconomic status. Socioeconomic status points to the ability for individuals to access markets in order to procure social goods for themselves. It can be defined by reference to an individual’s economic and social situation, measured by factors such as income, wealth, education, social and political participation, cultural representation, access to power, capability development, and agency.

The question then is: Can we escape the distributive pattern on which current antidiscrimination norms are fashioned (merit, achievement) and make these norms responsive to alternative criteria (need, socioeconomic status) whenever social goods such as housing or health are at stake? The following two blog posts in this series will present two different avenues allowing us to make this normative shift.

19 March 2018