This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.
First and most straightforward, the values animating discrimination law apply to poverty: Existing discrimination laws protect traits that are subject to pervasive and illegitimate social bias. They cover both immutable and mutable traits. The logic animating these laws applies to poverty, regardless of whether a person was born poor or falls into poverty later in life.
Second, due to the association between race and poverty, SES-based discrimination reinforces and perpetuates racial inequality. A comprehensive strategy for addressing racial discrimination must also address SES-based discrimination.
The third argument is political: Many policies that have an adverse racial impact have an adverse impact on poor people of all races—e.g., voter ID laws or zoning laws restricting multi-unit housing. Framing disparate-impact claims in terms of SES would highlight the extent that lower-SES people of all races share common experiences of marginalization. This might be a step toward building a multiracial coalition focused on economic inequality—a longstanding goal of many progressives.
The fourth argument is legal: Some have argued that racial disparate-impact law should trigger scrutiny under the Fourteenth Amendment because it requires racially motivated decision making. Because poverty is not a suspect class under the Fourteenth Amendment, disparate-impact provisions targeting socioeconomic disparities would not raise the same constitutional concern.
I explain how protections against SES discrimination could be administered, as a practical matter. Prohibiting SES discrimination would not be as impractical as it might initially seem. Indeed, the practical questions associated with protecting SES are not really different from those associated with protecting race, disability, age, and other traits.
“Personal poverty may entail much the same social stigma as historically attached to certain racial or ethnic groups. But . . . personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have.
“[S]ociety’s unexamined embrace of class discrimination reflects the irony that class is both the preferred method for and the hidden obstacle to racial justice.”
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 121 (1973) (Marshall, J., dissenting).
Audrey G. McFarlane, Operatively White?: Exploring the Significance of Race and Class Through the Paradox of Black Middle-Classness, 72 Law & Contemp. Probs. 163, 163 (2009).