ATD Ireland are currently undergoing a campaign along with the #Addthe10th alliance to have socio- economic status recognised as the tenth ground of discrimination in equality legislation namely the Equal Status Act and the Employment Equality Act. See here to read more and learn how you can support the campaign. Although we believe that introducing this ground is an opportunity for Ireland to show real leadership internationally, Ireland is not the only country where this issue is on the agenda. Discrimination based on socio- economic discrimination is protected against to varying degrees in Europe and internationally. It is important to take note of and learn from international evidence to ensure that any potential legislation introduced is as effective as possible for the people it aims to protect.
It is difficult to make direct comparisons between anti- discrimination legislation from different countries as slightly different terms are used “and their English translation can hide further differences”. However, Kadar (2016) groups discrimination legislation related to socio- economic status into four clusters;
– Social origin, following the wording of international instruments (used in 10 jurisdictions)
– Social status, social position, social condition or social class, taking a wider and more holistic approach that can encompass a number of more narrowly construed categories (used in 13 jurisdictions)
– Wealth, income, property, economic situation, financial status, placing the emphasis on financial aspects (used in 16 jurisdictions)
– Education, focusing on a specific field of disadvantage (used in 5 jurisdictions)”(Kadar 2016 – pg 11).
Many countries also experience similar barriers and arguments against not recognising socio- economic status as a ground of discrimination. Many argue that there is no need to differentiate between socio- economic rights and socio- economic discrimination, that one’s socio- economic status comes down to personal responsibility and there is the issue of how to prove the intention behind actions seen as discriminatory. Many analysts have suggested that there is serious under reporting of cases based on SES related grounds for a variety of reasons including persistent societal shame and stigma. Particularly in Ireland there is a lack of casework in relation to all grounds of discrimination which is needed for a strong evidence base.
It is important for legislation to recognise the variety of ways in which poverty-based discrimination can manifest. According to Olivier De Schutter, UN Special Rapporteur on discrimination, “it can have its source in legislation, regulation or policies that treat people differently on the basis of income or wealth, or on the basis of proxies such as level of education or source of income, in order to exclude people in poverty. It can result from the behaviours of both public agents or private individuals. It can originate in the hiring practices of a firm, or in the policies of real estate agencies or school boards. It can be conscious or unconscious: lawmakers or policymakers, just like employers or landlords can be guided what one scholar called ‘povertyism’, negative stereotyping of people in poverty, whether they are aware or not of such prejudice”.
United Nations and the EU
Grounds related to socio-economic status are widely protected in international, Council of Europe, EU, and national laws.
At the United Nations level, Articles 2(1) and 26 of the International Covenant on Civil and Political Rights explicitly protect people against any discrimination (distinction) on grounds of “social origin […] or other status”. It also enshrines the grounds of property and birth. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights contains a similar clause regarding the rights contained in it. 193 countries have committed to the UN Agenda 2030’s 17 Sustainable Development Goals and the ‘Leave No One Behind’ Promise, which among others includes the goals to end poverty. “The fight against poverty and the fight for equality must go hand in hand”– Tena Šimonović Einwalter, Chair of the Equinet Executive Board (Equinet 2018). According to the 2012 Guiding Principles on Extreme Poverty and Human Rights, persons experiencing extreme poverty in particular “live in a vicious cycle of powerlessness, stigmatization, discrimination, exclusion and material deprivation, which all mutually reinforce one another” (De Schutter).
In the second cycle of the UN’s Universal Periodic Review (UPR) mechanism, in May 2016, Ireland received three recommendations from the Working Group on the UPR to adopt comprehensive anti-discrimination legislation that would cover all grounds of discrimination including “social origin, property, birth or other status”, (McKeon 2019)- Addthe10th alliance.
At a European level, social origin is specified as a protected ground in Article 14 ECHR (European Court of Human Rights) and Article 1 of Protocol No. 12 to the ECHR, besides the ground of property. Article 1 of Protocol No. 12 stands alone and does not have to be invoked in conjunction with another right guaranteed by the Convention, as opposed to Article 14. Article E of the revised European Social Charter also prohibits discrimination on grounds of social origin, birth, or other status. Article 21 CFREU (Charter of Fundamental Rights of the European Union) forbids discrimination based on social origin and property, as opposed to Article 19 TFEU (Treaty on the Functioning of the European Union) and the EU anti-discrimination directives, which do not. However, the Charter has a limited scope of application.
A minority of European countries explicitly enshrine grounds related to socio-economic status, including social origin, social status, property, wealth, economic vulnerability, financial status, housing assistance, education, social standing, etc. There are case examples of individuals going to the European Courts when experiencing discrimination when they are not protected by national legislation. The case of Central Union for Child Welfare v. Finland concerned an amendment to the Finnish Act on Early Childhood Education and Care which restricted the individual entitlement to early childhood education and care to 20 hours per week where one of the parents was unemployed or on maternity, paternity, or parental leave for a sibling. The European Committee of Social Rights (ECSR) found an instance of discrimination based on parents’ socio-economic status with regard to children’s right of access to education and care.
In 2008, the European Commission presented a proposal for a directive on implementing the principle of equal treatment outside the labour market, irrespective of age, disability, sexual orientation or religious belief, which aimed at extending protection against discrimination through a horizontal approach. However, as unanimity of all member states is required in the European Council, the draft has remained blocked at that stage since then. Yet, work and debates have been going on for the past 10 years and the proposal is still alive. – ATD Ireland
Even if equality and human rights campaigners, including ATD Europe, raised voice in the past years to advocate for the recognition of the SES in the process, the current draft of the horizontal anti-discrimination directive does not include the socio-economic ground. If the directive is adopted as it stands, mobilisation will continue in the coming years to make sure that the common experience of many of the most vulnerable EU citizens is recognised and that protection for all is improved. – ATD Ireland
The Lisbon Treaty came into force in December 2009. “It offers a valuable foundation for an enhanced response to the link between poverty and discrimination”. – Addthe10th alliance
National Laws
In Ireland, the Equality (Miscellaneous Provisions) Bill 2021, which is currently pending before the Irish House of Representatives, defines the characteristic of socioeconomic disadvantage as “having disadvantaged social status or disadvantaged economic status, or both, that may be indicated by a person’s inclusion, other than on a temporary basis, in a socially or geographically identifiable group that suffers from such disadvantage resulting from one or more of the following poverty, source of income, illiteracy, level of education, address, type of housing or homelessness, employment status, social or regional accent, or from any other similar circumstance.”
Since 2016, socio- economic status is currently recognised as a ground of discrimination as relates to housing assistance. This is a common approach which can also be seen in Ontario, Canada. This has been a very welcome and encouraging step, particularly as evidence from other countries suggest that the field of housing is a frequent site of socio- economic discrimination. According to Kadar (2016) “There is structural socio-economic discrimination in the field of housing in Brussels, where it is increasingly difficult to find a place to live in. Many real estate agencies refuse people on social benefits”. A similar incidence can be seen in Quebec, “the selection of cases on this ground featured on the Commission’s website suggests that the majority of social condition complaints concern the field of housing”.
Belgium
In Belgium the federal anti- discrimination act explicitly includes protected grounds of wealth and social status. UNIA, the Interfederal Centre for Equal Opportunities defines the ground of wealth as ‘the fact of having financial means, whatever the origin’.
According to UNIA’s statistics case files on the basis of wealth are predominantly from the field of housing. This ground accounts for 35% of all cases and typically concerns the refusal of persons on welfare or unemployment benefits. A typical example provided is a landlord, who required potential tenants to have a permanent employment contract and a minimum income of EUR 2000. In another case, the court found that a landlord had discriminated by refusing to rent his flat to someone with a fixed term contract.
Out of 184 complaints in 2020, 171 related to access to goods and services (mainly housing) and only 4 concerned the field of education, where people either do not feel that they are discriminated against or do not see the equality body as a helpful actor in this context. In December 2021 the #Addthe10th alliance submitted a collective response to the government consultation for the review of the equality acts. Along with calling for the addition of the tenth ground of socio- economic status, it has also called for the role of the Irish human rights and equality body to be strengthened. The submission also suggests that equality legislation should be more accessible for individuals to take cases across all grounds.
Bulgaria
In Bulgaria, Article 4 of the Protection against Discrimination Act lists 19 grounds in a semi-open list of grounds. The 19 grounds include explicit mention of ‘education’, ‘social status’, and ‘property status’. In 2020, most of the complaints brought before the Commission for Protection against Discrimination (and especially the panel in charge of the grounds of “education, belief, political affiliation, social status, and property status”) were related to education and social status, although rarely successful for the latter.
Croatia
Article 1(1) of the Anti-Discrimination Act lists social origin, property, education and social status among the protected grounds of discrimination. In the section on discrimination in the area of labour and employment the Ombudsman reports a large number of complaints on the ground of education.
According to this report, the experiences of homeless people as a specific group show that they are faced with many issues, stereotypes and prejudices because of their social position, which also makes their employment very unlikely. The experiences of Bulgaria and Croatia suggest that education is an important criterion to consider when determining indicators of socio- economic status.
France
Discrimination legislation includes grounds of; physical appearance, origin, health, disability, sex, sexual orientation, lifestyle, political opinions, religious opinions, age, last name/ first name, pregnancy, marital status, genetic characteristics (DNA), gender identity, union activities, national/ belonging or not belonging to a nation, belonging or not belonging to a race, place of residence, loss of autonomy, aporophobia- social precarity, ability to speak a language other than french, bank domiciliation, the normal exercise of the right to strike. In June 2016 (Act 2016 – 832) the ‘ground of economic precarity’ was inserted in the 27 May 2008 Equality Act. Only direct discrimination towards particular economic vulnerability was recognised (discrimination resulting from an economic situation known by the perpetrator). The addition to the law also included a principle of positive action towards persons who are vulnerable because of their economic situation.
The French Defender of Rights has ruled that the practice of special menus which restrict children’s access to “normal” school meals (“lunch shaming”) with the sole aim of forcing parents to pay their debts stigmatises the children targeted by this measure and constitutes an instance of discrimination based on their particular economic vulnerability.
It is interesting to note, that according to Ganty and Sanchez (2021) in France, judges are more likely to rule on socio-economic inequality rather than discrimination on the basis of ethnic origin, especially when cases concern the Roma community and migrants.
In 2010, the HALDE organised with ATD a first hearing on SES discrimination. The campaign had started and was to last for another six years. It included blind-testing and experimentation where ATD collaborated with the research Institute, ISM Corum, to investigate whether SES discrimination could be measured. This was done by conducting an experiment from April to July 2013. Eight hundred test CVs were mailed out requesting work as supermarket cashiers. Half of the CVs included two indicators of SES: a current address in a temporary housing shelter; and previous employment in a social enterprise designed to hire people having difficulties finding employment. CVs in this group received job offers 50 percent less frequently. The net discrimination rate for applicants whose CVs implied SES was +30 percent in total, +25 percent among men, and +35 percent among women. – ATD Ireland
“What may be initially anti- poor prejudice based on false assumptions about the ability and reliability of people with low-income backgrounds may gradually turn into becoming a form of ‘statistical discrimination’ an economizing device allowing for decision to be made with less effort based on generalisations about the relationship between poverty and ability”. – Olivier de Schutter
Britain
The Equality Act 2010, as adopted, did not list a ground related to socio- economic status as a protected characteristic. However, it introduced a public sector duty regarding socio-economic inequalities, obliging relevant authorities to have due regard to the aim of reducing the inequalities of outcome which result from socio-economic disadvantage.
British equality Act Section 1: ‘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 desirability of or exercising them in a way that is designated to reduce the inequalities of outcome which result from socio- economic disadvantage.
Although this has not yet been effected in England, in 2018, the Scottish Parliament enacted the Fairer Scotland Duty, which “places a legal responsibility on particular public bodies in Scotland to actively consider (‘pay due regard’ to) how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions”. More recently the socio-economic duty came into force in Wales and some local councils, such as the Newcastle Council, currently treat the socio-economic duty as if it were in force.
ATD have been prevalent in this campaign in the UK also under the slogan of #doyourdutyforequality.
The guardian analyse the important role the socio- economic duty could have made in England, particularly during the Covid- 19 pandemic. “The public sector duty would have imposed a legal obligation on education authorities in England to ensure working class children on free school meals were fed properly while schools were shut and had access to laptops for remote learning”
“The Runnymede Trust says there would have been an onus on authorities to tackle these and other issues, including the struggle of some health and social care staff to access adequate personal protective equipment, had the public sector duty regarding socio-economic inequalities been implemented.”- Haroon Siddique
Northern Ireland
The introduction of a socio-economic status ground into equality legislation has been under discussion since 2004. The Equality Commission for Northern Ireland (ECNI) has not supported the introduction of this new ground in the legislation mainly as it considers that it would place a burden on the Single Equality Act and would shift the focus from disadvantaged groups to a more general level and to disadvantage per se.
Hungary
Article 8(1) of the Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities prohibits discrimination on the basis of social origin and financial status.
Financial situation was among the grounds on which respondents have most
often reported to have experienced discrimination.
The ETA reported a settlement concluded in a case in which the petitioner, citing their property status, found it injurious that the municipality, after having accepted their equity application for public housing, only offered them flats that were in bad condition.
A report of the Commissioner and the Deputy Commissioner (2014- 2015) established that the recurring official controls concentrating on segregated areas mostly inhabited by Roma resulted in direct discrimination based on social origin and financial status, and indirect discrimination based on belonging to a minority.
Olivier de Schutter argues that in anti- discrimination legislation, the term ‘social disadvantage’ is preferable to using ‘property’ or ‘social condition’ “since socio- economic disadvantage is asymmetric: it protects people in poverty or on low incomes from discrimination without discouraging measures that would seek to remedy existing inequalities by imposing particular disadvantages or burdens on high income or wealthy individuals”.
Serbia
Discrimination on grounds of social origin and property is only prohibited in the field of education, employment, and judicial process, while socio-economic discrimination mainly occurred in the field of housing (including municipal housing). The grounds of financial position and income level are, however, explicitly enshrined in the General Law on Prohibition of Discrimination, which covers all fields.
Through our ‘Does It Only Happen To Me’ report, we uncovered many real life examples of socio- economic discrimination. Through this evidence many victims of socio- economic discrimination feel it often occurs based on their accent, what they are wearing or their address and not necessarily such strict indicators of income level. As a result, changes to the equality legislation should encompass both the social and economic aspects of socio- economic status.
Canada
There are a variety of socio-economic status-related grounds in the laws of different Canadian provinces and territories and no protection on this ground at the federal level.
British Columbia
Section 10 of the British Columbia Human Rights Code prohibits discrimination on the ground of ‘lawful source of income’ in tenancy premises.
In Ontario, section 2 of the Human Rights Code prohibits discrimination on the ground of ’receipt of public assistance’ only in accommodation. The definition applied by the Ontario Human Rights Commission links the ‘receipt of public assistance’ with the experiences of poor people and people living in poverty. Similar to the Serbian legislation this is based more so on the economic rather than social indicators. This is opposed to the Northwest Territories which, through the ground of ‘social condition’ attempts to take a more wholistic understanding of social status.
Northwest Territories (N.W.T)
The ground of ‘social condition’ has been inserted into the Human Rights Act in 2002. Section 1 of the Act defines social condition as meaning ‘the condition of inclusion of the individual, other than on a temporary basis, in a socially identifiable group that suffers from social or economic disadvantage resulting from poverty, source of income, illiteracy, level of education or any other similar circumstance’.
According to its annual report for 2014-2015, social condition was the third most prominent ground of discrimination in the complaints submitted to the N.W.T. Human Rights Commission. In a leading case on this ground, the Northwest Territories Human Rights Adjudication Panel, the N.W.T. Court of Appeal and the N.W.T. Supreme Court all found that seasonal workers (from a region of Canada that suffers high unemployment) can be considered a group protected from discrimination on the ground of social condition.
Québec
Section 10 of the Charter of Human Rights and Freedoms has contained a general
prohibition of discrimination and harassment on the ground of ‘social condition’ since its adoption in 1975. The Charter does not define social condition, but case law and the Quebec Commission defines it as one’s situation in society determined by income, occupation, or level of education. “On this basis employers making adverse decisions on grounds that a person receives social aid or on their type of residential tenure, or landlords refusing to rent an apartment to a person depending on social assistance due to that person’s presumed inability to pay, have been considered to be committing discrimination”- Olivier De Schutter
Finland
Finland is an example of a legislation which does not have direct reference to socio- economic status or social status. However, the ground covering ‘other personal characteristics’, although vague, could provide some protection in this regard. According to Olivier De Schutter, where there is an ‘open’ list of grounds this has often been used in courts to provide protection against socio- economic discrimination.
A new non- discrimination act was entered into force in 2015- The Act will be applied to all public and private activities, excluding private life, family life and practice of religion.
The protection against discrimination is equal regardless of whether the discrimination is based on ethnic origin, age, nationality, language, religion, belief, opinion, health, disability, sexual orientation or other personal characteristics. https://ec.europa.eu/migrant-integration/news/finland-new-non-discrimination-act-entered-force_en
Georgia
Even if a socio- economic ground is in place, further work will have to be done in order to ensure that it is impactful and those who suffer from discrimination feel comfortable taking on cases of discrimination and fighting for their rights. According to Ganty and Sanchez (2021) “Under-reporting is an important obstacle to the protection offered by anti- discrimination law. This phenomenon has already been largely documented and it is particularly evident when it comes to socio-economic discrimination”. They suggest that there is still a certain shame around being labelled as living in poverty or being ‘poor’. This will, of course, vary from person to person and by country but perhaps other grounds are seen as less shameful and easier to take cases on. There is evidence in Georgia and Greece. In Georgia, “no case of discrimination on the basis of socio-economic status was evoked to the exception of the issue of unpaid internships”.
South Africa
In South Africa, the Equality Clause of the ’96 post- apartheid constitutions Bill of Rights includes a specific anti- discrimination provision, which lists ‘social origin’ among the suspect grounds of differential treatment, which has been interpreted to include class. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which gives effect to section 9 of the Constitution, extends the prohibition of discrimination, in addition to more traditional “suspect” grounds related to status, to “any other ground where discrimination based on that other ground (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a [traditional status] ground”. The PEPUDA also contains a “Directive Principle” that requires the Minister to give special consideration to the inclusion of, inter alia, “socio-economic status” in the list of prohibited grounds, which the Act defines as “social or economic condition or perceived condition of a person who is disadvantaged by poverty, low employment status or lack of or low-level educational qualifications”. Although this remains to be implemented by the Executive, the Act expressly provides that in the interim nothing prevents a court from determining that “socio-economic status” constitutes an unlisted ground of discrimination or that it falls within the definition of any of the expressly listed grounds in s 1 of the Act.
In South Africa, section 9(3) of the Constitution allows for the possibility of using multiple grounds in a single claim.
The #addthe10th alliance outline how it is important to recognise the potential to be discriminated against on multiple different grounds. Further those belonging to a particular minority are often most at risk of having low income or inhabiting other characteristics of socio- economic disadvantage. It is necessary that the addition of any future socio- economic status ground in Irish legislation only strengthens the protection provided by the other nine grounds. “In order to recognise intersectionality, equal treatment legislation should define discrimination as including “a practice based on one or more prohibited grounds of discrimination or the effect of a combination of prohibited grounds”.- Olivier De Schutter.
The 2000 PEPUDA established the equality courts to improve access to justice for victims of discrimination.
The courts and legal system can often be inaccessible spaces for people from marginalised communities, and so it has been argued that this should be addressed when designing anti- discrimination legislation. According to De Schutter, this can be achieved through offering legal aid and the creation of specialised courts as can be seen in South Africa. In Ireland cases of discrimination, are usually dealt with through the Workplace Relations Commission. The #Addthe10th alliance have stated how there are several issues with the WRC as a site for accessing redress. It is a confusing title, WRC staff are not trained on issues of diversity and equality and the process can involve confusing legalistic requirements which are inaccessible (#Addthe10th alliance).
Although this is not a fully comprehensive outline of the legislation covering socio- economic discrimination throughout the world, it hopefully gives an overview of the advantages and pitfalls of various approaches taken internationally.
ATD Ireland, along with the #Addthe10th alliance will continue to advocate for the implementation of a socio- economic status ground in the Irish equality legislation. We hope that any potential ground will take into consideration the learnings which can be taken from the international evidence. Further, along with the ATD international community we will continue to support those who are affected by socio- economic discrimination daily across the world.
This article has been adapter from the following references:
Combating discrimination on grounds of socio-economic disadvantage: A tool in the fight against poverty- Olivier De Schutter. UN Special Rapporteur on Extreme Poverty and Human Rights
# Add the 10th Alliance Submission to DCEDIY Review of the Equality Acts
Expanding the List of Protected Grounds within Anti-Discrimination Law in the EU- Ganty and Sanchez
Does it only happen to me- living in the shadows of socio- economic discrimination- ATD Ireland
An analysis of the introduction of socio-economic status as a discrimination ground- Kadar (2016)
Europa. EU https://ec.europa.eu/migrant-integration/news/finland-new-non-discrimination-act-entered-force_en
Harroon Siddique- The Guardian
