Tackling socioeconomic discrimination (II): Public sector equality duties

The first entry of this blog post series concluded with a bold question: 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 two principal normative devices developed in Europe and elsewhere to incorporate socioeconomic criteria into antidiscrimination law are, first, public sector equality duties, and second, socioeconomic disadvantage as a prohibited discrimination ground. This second blog post will cover public sector equality duties, whereas the third entry focuses on socioeconomic disadvantage as a prohibited ground of discrimination.

Public sector equality duties typically require public authorities, and private bodies in certain cases, to examine the impact that the policies or practices they elaborate and implement have on disadvantaged groups. Consequently, they create an obligation to take the particular situation and needs of these groups into account. Public sector equality duties are part of a broader compendium of statutory duties in equal treatment legislation, besides equality mainstreaming, equality plans, coordination-based equality duties, and process-based equality duties.

I use the term public sector equality duty here in a narrow sense, as a subset of that broader category of statutory obligations. Public sector equality duties consist in a procedural obligation to have “due regard,” rather than a more general duty to mainstream equality considerations into policy making — although the former may be considered as a more stringent iteration of the latter. They are carried out with regard to predefined, legislative goals, rather than indicators set out in collaboration with social actors or with other states or supranational entities. They concern policy and decision making, rather than public procurement or monitoring and benchmarking processes.

Under this narrow approach, the term refers to specific duties placed on particular actors, oriented towards predefined goals set out by legislation, requiring concrete procedural steps, and usually subject to judicial review.

Public sector equality duties have been mostly used regarding “status” grounds, such as racial or ethnic origin, gender, and disability. Experiences of their practical application show that they can succeed in changing administrative practices, but their efficacy is restricted by their procedural nature. They are valuable tools to raise attention upon the exclusionary effects public policies may have on the most vulnerable. Even if the ability of these duties to bring about immediate policy change is not self-evident, they call for the needs of disadvantaged groups to be given particular attention in policy design and implementation, and lead to enhanced transparency in administrative decision making.

The question arises as to whether public sector equality duties could also be foreseen in relation to socioeconomic disadvantage. A public sector equality duty to reduce socioeconomic disadvantage would be generally consistent with the rationale of equal treatment statutory duties: socioeconomically disadvantaged individuals are likely to experience the consequences of many public policies — especially those relating to economic, social, and cultural rights — differently from individuals who have more resources available.

If public authorities seek to elaborate or implement a particular policy, it would not seem unreasonable, from this perspective, to require them to examine in advance how that particular policy is likely to impact on socioeconomically disadvantaged groups. This is all the more relevant if we take into account the reduced input of these groups in political and administrative decision making, especially when compared to more resourceful groups who can better organise themselves—for instance, through lobbying and interest representation.

In the UK, Section 1 of the Equality Act 2010 foresees a public sector equality duty concerning socioeconomic disadvantage (“an authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”). This section is, however, currently not in force, as the required “commencement order” has not been adopted. Just Fair and The Equality Trust are campaigning for the commencement of this duty with the action #1forEquality. Personally, I cannot but commend their efforts and support this cause.

An equality duty regarding socioeconomic disadvantage would play a significant role in the field of housing, where, at least in the current housing paradigm, socioeconomic status determines to a considerable extent how effective an individual’s access is to this social good. If policymakers were required to have due regard to the need to improve the situation of the socioeconomically underprivileged, and to prove that they have done so, this could prevent — or, at least, render more transparent and accountable — the choice of housing policies which reinforce the position of the wealthier to the detriment of those excluded from housing markets.