Class as Protected
Since May of last year, more than eight million Americans have slipped into poverty, in part due to the federal government’s failure to promptly and effectively renew the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The federal poverty line is currently set at $26,500 for a household of four. This threshold, which was essentially created by multiplying the average amount a household spent on food by three, has risen by only about $4,000 in the past decade. It is an antiquated measure of poverty across the board.
The impact of slipping into poverty is all-encompassing; I mean that in the way that poverty will impact every step and crevice of your financial health, physical health, and mental health for the rest of your life. So why aren’t there more legal protections for poor Americans?
As it stands, socioeconomic status is not a protected class under anti-discrimination laws. But it should be—and here’s why.
The Story
In the article “Being Poor” by John Scalzi, each sentence describes the real-life impacts of living in poverty in America. Readers have the opportunity to add their own experiences in the comments. “Being poor is hoping the toothache goes away.” “Being poor means making decisions like ‘is stealing food a sin’ outside of an ethics class.” “Being poor is knowing you’re being judged.” Ask any poor person and they’ll know—the impact of poverty will stick with them for life.
The American Academy of Family Physicians has found that the impact of poverty begins in utero and continues throughout an individual’s life. Poverty is associated with various adverse health outcomes such as shorter life expectancy, higher rates of infant mortality, and higher death rates for the fourteen leading causes of death, including heart disease, diabetes, stroke, and other chronic conditions. This is not only due to personal factors but also environmental ones—those who live in poverty are less likely to have health and dental insurance, are targeted by tobacco and other drug companies, have less access to fresh foods, and have less space to complete physical activity. Moreover, those in poverty are often working multiple jobs to make ends meet, which means not having enough time to continuously meal prep or exercise. As UCSF states, “poverty [often] becomes disease.”
Mental illness is also more prevalent in low-income populations. Impoverished Americans are four times as likely to report being nervous and five times as likely to report being sad all or most of the time. Elevated levels of the stress hormone cortisol are associated with poverty, which has lasting impacts on children beginning in utero and continuing after birth. Impaired nervous systems negatively affect cognitive and socioemotional development, leading to behavioral challenges and adverse health behaviors.
Aside from the structural discrimination mentioned above, impoverished Americans face personal discrimination at higher rates than non-impoverished Americans. For example, sometimes poor Americans can’t land a job because their missing teeth do not “fit the image of the firm.” This discriminatory narrative is constantly reaffirmed on a national scale as well. Last year, President Donald Trump tried to bar immigrants from entering the United States if they were “likely to become public charges,” or likely to receive federal aid to subsist in America, highlighting the notion that folks who are low-income and seek government assistance are exploitative and should be excluded from society. Indeed, poverty is viewed as a stain on the American Dream, and by extension, on America itself.
The Law
There are two major sources of anti-discrimination law in America: the Fourteenth Amendment and anti-discrimination statutes.
Anti-discrimination law under the Fourteenth Amendment can be traced back to the infamous Footnote Four from Carolene Products. Footnote Four set the standard for when the courts can intervene in the political process and protect certain rights and classifications; these categories receive “heightened protection” by the courts. Footnote Four made clear that “discrete and insular minorities” enjoy heightened constitutional protection. In the modern era, whether someone is a “discrete and insular minority” will help determine whether that person belongs to a “suspect class,” or a class of individuals historically subject to discrimination who receive heightened protection in the courts. Currently, there are only five “suspect classes” recognized by the courts: race, national origin, citizenship, parents’ marital status, and sex. The Supreme Court has repeatedly held that poverty is not a “suspect class” under the Fourteenth Amendment and, ultimately, has not recognized any new suspect classes since the 1970s.
Federal anti-discrimination statutes trace back to the Civil Rights Act of 1964, which was one of the major outcomes of the civil rights movement. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin, or sex. It was further amended in 1978 to prohibit pregnancy discrimination. Title VI, which reaches further than the employment sphere, prohibits discrimination on the basis of race, color, or national origin under any program receiving federal financial assistance. Similarly, the Fair Housing Act prohibits discrimination in housing and lending because of race, color, religion, sex, national origin, familial status, or disability. There are similar statutes across all 50 states. Under the plain language of these statutes, protected classes overlap with, but are ultimately broader than, recognized suspect classes under the Fourteenth Amendment.
The Change
My proposal is simple: place class within the purview of anti-discrimination law by adding socioeconomic status to the language of Title VII and other anti-discrimination statutes. The hope is that this legislative change will encourage courts to protect socioeconomic status under the Fourteenth Amendment.
This simplicity may invoke criticism. Some may argue that since people can dip in and out of poverty, socioeconomic status cannot be subject to anti-discrimination protection under the Fourteenth Amendment or anti-discrimination statutes, both of which are premised on immutable characteristics. But the pick-yourself-up-by-the-bootstraps Horatio Alger myth is just that—a myth. Wealth and poverty are transmitted between generations, and those born into poverty often remain there due to structural barriers in moving up the class ladder despite great personal potential. Despite these barriers, however, people do shift in and out of poverty over time. So why should we protect socioeconomic status?
First, many anti-discrimination statutes do protect mutable characteristics, or characteristics that may be altered, such as pregnancy or religion. Just as one may be pregnant and then not, one may be poor and then not. Indeed, the line between mutable and immutable characteristics is a contested one—there have been calls to change the way the law perceives immutable characteristics and discussions of whether mutability is necessary for anti-discrimination laws at all.
Secondly, as stated above, being poor has a life-long impact on people: it sticks with you, it changes the way you interact with the world, and it changes the way the world interacts with you. In this way, poverty is similar to race, gender, and other already protected classes described as immutable.
Lastly, those who grow up in poverty are disproportionately Black, Latinx, and Native. According to the 2018 U.S. Census, the highest poverty rate by race was found among Native Americans (25.4 percent), Blacks (20.8 percent), and Hispanics (17.6 percent). Poor Americans are also disproportionately female. By protecting socioeconomic status, the law would provide additional avenues of legal protection from discrimination for racial minorities and women as well, thereby strengthening Footnote Four’s intention of protecting “discrete and insular minorities.”
The Impact
Adding socioeconomic status to anti-discrimination statutes will not drastically shift the legal landscape. Proving socioeconomic discrimination will still be challenging. Plaintiffs will likely have to follow the McDonnell Douglas balancing test, which is a burden-shifting framework used in Title VII employment discrimination cases that ultimately requires a plaintiff to prove discrimination with evidence. This test is difficult to meet and, as some scholars argue, is often used to defeat plaintiffs’ claims. Sociologically, including socioeconomic status in anti-discrimination statutes may merely provide legitimacy for the status quo. To be clear, I recognize that including class in anti-discrimination statutes will not dramatically improve the daily lives of poor Americans.
However, folks will finally have a leg to stand on in court when they’re denied opportunities because of their class. This will deter certain institutions and individuals from discriminating outright against the poor. Just as significantly, the narrative surrounding poverty and how Americans think about it will shift over time. The larger public will begin to perceive of and affirm poverty as life-changing, similar to the way we believe—and know—race and gender are fundamental to how people navigate the world.
I was a social welfare major in undergrad, and we were taught harm-reduction is key to achieving justice. Prohibiting class discrimination will not fix inequality, but it will provide a foundation for challenging discriminatory laws and practices that threaten our democracy. Protecting class will be a step in the right direction.
Jasjit Mundh: Executive Editor, California Law Review, Berkeley Law Class of 2021.
