HOW RACE, ETHNICITY, AND GENDER IMPACT YOUR LIFE’S WORTH Discrimination in Civil Damage Awards © 2018 by the Lawyers’ Committee for Civil Rights Under Law. This report may be reproduced in its entirety as long as the Lawyers’ Committee for Civil Rights Under Law is credited, a link to the report’s web page is provided, and no charge is imposed. The report may not be reproduced in part or in altered form, or if a fee is charged, without permission from the Lawyers’ Committee for Civil Rights Under Law.

AUTHORS: Dariely Rodriguez, Director, Economic Justice Project Hope Kwiatkowski, Fellow, Economic Justice Project

RESEARCH ASSISTANT: Timothy Klipp-Lockhart, Legal Assistant, Economic Justice Project

DESIGN: Cutting Edge Design Lawyers’ Committee for Civil Rights Under Law would like to thank Silicon Valley Community Foundation for supporting this report and WilmerHale for providing pro bono research assistance.

SUGGESTED CITATION: Dariely Rodriguez & Hope Kwiatkowski, How Race, Ethnicity, and Gender Impact Your Life’s Worth: Discrimination in Civil Damage Awards, Lawyers’ Comm. for Civil Rights Under Law (July 2018). Letter from the President & Executive Director

The Lawyers’ Committee for to address issues impacting • the U.S. Department of Hous- Civil Rights Under Law (Law- equal educational opportuni- ing and Urban Development yers’ Committee) is a nonpar- ties for our nation’s children, after it unlawfully suspended tisan, nonprofit civil rights fair housing opportunities, a federal requirement that organization whose principal voting rights, economic justice, local and state governments mission is to secure equal criminal justice and more. The address segregated housing justice for all through the rule organization is also working to patterns as a condition of of law, targeting the inequities combat the spike in hate crimes receiving HUD funding; confronting African Americans across the country and working • the Departments of Justice and other racial and ethnic mi- to preserve the integrity and and Homeland Security in norities. We stand on the front- diversity of our nation’s courts. connection with the now-de- lines of some of today’s most The Lawyers’ Committee also funct Election Integrity significant and complex civil spearheads the Election Pro- Commission; and rights challenges. The Lawyers’ tection Coalition, the nation’s Committee works with the larg- largest nonpartisan voter pro- • the U.S. Department of est pro bono civil rights network tection initiative coalition, by Commerce and the U.S. in the nation, comprised of partnering with local organiza- Census Bureau to challenge more than 150 law firms. We tions and law firms throughout the inclusion of a citizenship also work with more than 150 the country to assist thousands question on the 2020 Census. national, regional, statewide of voters through its network Founded 55 years ago by and local grassroots organiza- of trained volunteers and its President John F. Kennedy, the tions throughout the country 866-OUR-VOTE hotline. Lawyers’ Committee for Civil and are affiliated with 8 local In addition, the Lawyers’ Com- Rights Under Law continues to committees in San Francisco, mittee promotes accountability be at the forefront of the most Los Angeles, Boston, Chicago, and transparency in the current important efforts to advance Denver, Mississippi, Philadel- era, mounting legal challenges civil rights and ensure that ev- phia, and Washington, D.C. against the Administration in ery American has a voice in our Through its programmatic response to the many rollbacks democracy. work, the Lawyers’ Committee and threats to civil rights. For Sincerely, brings affirmative impact liti- example, the Lawyers’ Commit- gation cases across the country tee has recently sued:

Kristen Clarke

President and Executive Director Lawyers’ Committee for Civil Rights Under Law

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 1 I. Introduction

The U.S. Constitution promises and women. Today, the problem is equal protection and due process more insidious: race and gender under the law. Important federal, are embedded in the wage ta- state, and local civil rights laws bles used by experts to calculate prohibit discrimination on the damages for plaintiffs in wrongful basis of race, ethnicity, gender, death and personal injury cases. States must prioritize and other protected categories in The use of race/ethnicity- and/ various areas including employ- or gender-based data by experts legislative reforms ment, public accommodations, to predict lost earnings deprives and education. Yet, no federal or marginalized individuals, espe- that eradicate state law prohibits the use of race, cially children of color, from fair ethnicity, or gender in the calcula- compensation by perpetuating discrimination in civil tion of civil damage awards in tort systemic inequality and failing actions, which seek to make the to “recognize human potential.”2 damages awards by victim whole again. Since African The practice disproportionate- Americans, Latinxs, and women ly affects communities of color in the U.S. earn less than whites because it “creates an incentive prohibiting the use and men, respectively, the dam- for companies to allocate risks to ages they receive are substantially minority communities in order to of race/ethnicity- lower than those received by their minimize potential tort damages counterparts.1 in the future.”3 and gender-based Historically, courts relied on The use of race/ethnicity and/or statistical tables. explicit discrimination to justify gender in the calculation of civil lower awards for people of color damage awards has slowly come under increasing scrutiny by a few Yet, no federal or state judges, legislators, commentators, and academic researchers. One law prohibits the use of federal judge in particular, Judge Jack B. Weinstein of the Eastern race, ethnicity, or gender District of New York, stands out for recently ruling that the use in the calculation of civil of race-based tables is unconsti- damage awards in tort tutional. However, states have largely ignored this issue. States actions, which seek to must prioritize legislative reforms that eradicate discrimination in make the victim whole civil damages awards by prohibit- ing the use of race/ethnicity- and again. gender-based statistical tables.

2 | How Race, Ethnicity, and Gender Impact Your Life’s Worth II. Discriminatory Damage Awards Harm Minority Children and Communities of Color

Courts rely on damages calcula- the industry standard: approx- This practice is tions by experts who use tables imately 44% of economists said that predict, among other factors, they consider race when calcu- particularly problematic plaintiffs’ lost earnings and wages lating future earnings income when calculating on the basis of their race/ethnic- and 92% reported they consider ity and gender. Typically, experts gender.6 In a survey of 172 mem- damages for child use the Bureau of Labor Statistics’ bers of the National Association Current Population Survey, which of Forensic Economists, when victims who have not is updated quarterly, to determine tasked with calculating the loss of yet worked, attained projected lost earnings. Loss of a two-year-old African American earning potential is a significant boy unable to work in the future, a certain level of component of damages and can 42.4% stated they would only “make the difference between a use gender specific data, whereas education, or had an 4 modest and sizable award.” As 44.8% would use both race-specif- opportunity to indicate a discussed in Section IV below, ic and gender-specific data.7 race/ethnicity- and gender-spe- In assessing civil damages, courts specific career path. cific tables preserve systemic and generally admit expert testimony structural inequalities, reinforce from forensic economists who their expected wages, their age, and current pay gaps and workforce estimate the present value of lost their wage history—these experts discrimination, and fail to account future income.8 While most expert are also more likely than not to for possible progress.5 In short, economists consider several fac- take into account gender and race, they ascribe lower values to the tors to determine future income which tend to outweigh the individ- lives of women and people of earnings—like the number of ualized factors, such as academic color. Despite this discriminatory years a victim would have worked, ability, work ethic, professional impact, the use of such tables is aspirations, or educational attain- Percentage of economists who would consider each ment.9 This practice is particularly demographic variable in determining a child’s future lost income. problematic when calculating dam- 7.7% Consider neither ages for child victims who have not 43.6% Consider 0.5% Consider race only yet worked, attained a certain level race and gender of education, or had an opportunity to indicate a specific career path.10

For example, the use of race/ ethnicity tables greatly disadvan- tages children of color who are most likely to be the plaintiffs in 48.1% Consider gender only lead paint poisoning cases, but, because of their race, receive the Source: Kim Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less, Wash. Post; 11 Wonkblog (Oct. 25, 2016), https://www.washing­tonpost.com/graphics/business/wonk/settlements/. lowest awards. 11.2% of Afri-

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 3 can American children and 4% ous health problems, including and chemical factories.17 Of the of Latinx children are poisoned kidney failure, anemia, seizures, people who live within 1.86 miles by lead, compared with 2.3% of and brain development issues.15 of a toxic waste site, more than white children.12 Segregation and Despite these well-documented half are people of color.18 Children discriminatory redlining practices risks, the use of race/ethnicity in of color comprise almost two- have perpetuated a cycle where paying lower court awards likely thirds of the 5.7 million children children of color are dispropor- disincentives defendants from re- who live within one mile of a tionately living in low-income mediating lead-based paint from high-risk chemical facility in the housing.13 Such housing tends to residential buildings.16 U.S. 19 Health issues caused by the have high levels of lead-based prevalence of these environmental Communities of color are also paint, despite Congress banning hazards lead to an increased like- disproportionately impacted by the use of such paint in 1971.14 lihood of suits seeking personal environmental hazards created Lead poisoning from lead-based injury or wrongful death damages. by toxic waste centers, industrial paint can lead to various seri- The use of race and ethnicity data facilities, unsafe drinking water,

40% 22% 13.5% Latinx Residents African American Residents Asian Residents CASE STUDY: Richmond, California

Richmond, California is an example gas releases. A major fire in August 6, instance, after the 2012 fire, the city of of a community of color dealing with 2012 sent 15,000 residents and 19 workers Richmond filed suit against Chevron consistent and dangerous environmental to the hospital.24 The 17,000 people who arguing Chevron was guilty of negligence, exposure. 40% of Richmond residents live within three miles of the refinery maintenance of an ultra-hazardous are Latinx, 22% are African American, suffer from heightened rates of cancer, activity, and trespass of pollutants, ash, and 13.5% are Asian.21 asthma, and other pulmonary diseases.25 and soot on city property.28 Five years Children are especially affected by the later, the parties entered into a $5 million Richmond is home to a 3,000-acre oil air issues: Richmond has a much higher settlement of the claims.29 refinery owned and operated by Chevron, than average rate of children requiring which has repeatedly failed to comply Richmond, California is one of numerous hospitalization due to asthma.26 with the Clean Air Act, the Clean Water communities of color suffering from Act, the National Pollutant Discharge Chevron’s long history of disregard for devastating environmental degradation System, and the guidelines for Occupa- environmental regulations makes it with little to no access to adequate tional Safety and Health.22 Between 1989 difficult to sort out legitimate claims justice. Personal injury damages awards and 1995, 304 accidents transpired at and establish causation. Most of the calculated using race-based tables the Chevron Richmond refinery.23 These claims are dealt with through the city via further harm lower-income communities accidents ranged from fires, leaks, class actions and then settled without of color like Richmond that are already explosions, air contamination, and toxic any admission of guilt by Chevron.27 For economically disadvantaged. in civil damage award calculations low-income communities of color wrongful death lawsuits would be incentivizes corporations to place where the cost of damages awards less than if the community was their factories and operations in resulting from personal injury and predominately white.20

III. Historical Use of Race, Ethnicity, and Gender in Civil Damage Awards

The practice of reducing civil In 1970, a federal district brain damage by judging whether damages for African Americans she was marriage-material: “She and other racial and ethnic mi- court of the Eastern was attractive, healthy, talented, norities dates back to the early well-adjusted, and intelligent. . . 20th century when judges did so District of Pennsylvania .She enjoyed male companionship. with explicit reference to offen- assessed the worth of . . .Marriage probably would have sive stereotypes. For example, in interrupted her career.”34 In find- Blackburn v. Louisiana Ry. & Nav. a 19-year-old woman ing the victim to be marriage-ma- Co., the 1911 Louisiana Supreme terial, the court decided to reduce Court reduced the damages who suffered permanent her projected earnings by half.35 In award for an African American brain damage by judging 1975, another federal court found man by nearly 70%, citing “the that “eight years …falls squarely well-known improvidence of the whether she was in the middle of the range of a colored race, and the irregular life professional woman’s likely hiatus these colored brakemen lead.”30 marriage-material. from her principal occupation in A New York federal court in 1905 order to raise a family.”36 similarly reduced the amounts on sexist assumptions that women Courts have also required women awarded to the African American will have shorter or interrupted to justify professional ambitions victims of a steamship crash, ref- careers because of marriage and used to argue for higher damages erencing the book, Race Traits and motherhood. In 1944, the Supreme awards.37 One court dismissed ev- Tendencies of the American Negro Court of Pennsylvania reduced idence of a young female accident to purportedly show “in a forcible the award of a female child who victim’s lifelong aspirations to way the difference in the vitali- was killed by a city truck, based on become a veterinarian as “purely ty of the two races.”31 The court “the lower rate of wages ordinarily speculative” and “without eviden- relied on this racist “science” to obtainable in the industrial world tial foundation” due to the difficulty show that the African American by women as compared with men, of getting into the only veterinarian victims would have lived shorter and the likelihood of marriage and school in the region.38 The same lives, and therefore would have motherhood, with their resulting skepticism has not been shown in had shorter work-lives, thereby effect on the girl’s opportunity cases where men aspired to similar entitling the African American and capacity to continue through professional careers.39 Despite this victims to lesser damages.32 life as a wage earner.”33 In 1970, a federal district court of the East- pervasive discrimination in dam- Courts similarly have long jus- ern District of Pennsylvania as- ages awards, state legislatures have tified lower awards to women, sessed the worth of a 19-year-old failed to take any meaningful action including women of color, based woman who suffered permanent to rectify this wrong.

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 5 AMERICAN AFRICAN 6 WHITE MEN men withacollegeeducationearn significant gaps:AfricanAmerican African Americanmenalsoface only 69%. earnings andLatinomenearned men made73%ofwhitemen’s color: in2015, AfricanAmerican cial wagegapspersistformenof incarceration. Today, largera of slavery, segregation, andmass stemming fromAmerica’s history discrimination andinequality tions sustainstructuralracial ethnicity-based awardcalcula and racialinequality. and genderperpetuateseconomic tables delineatedbyrace/ethnicity The useofwageandearning for FutureProgress IV. DiscriminatoryCivilDamagesAwardsFailtoAccount Source: KimSoffen, Note: Allabove compensation projections useasimplified version of afuture lostincome modelwithatypical race andgenderbias.They donot reflect actual cal WHITE MALE MALE |How /graphics/business/wonk/settlements/ the typicalimpact race andgender have oncompensation. assume They further andcannot work victim isunder 25 withnowork inthefuture. history expectancy andboth variables are considered for wage. Whilethisisnot themethod themajority of economists use(nosinglemethod is),itisreflective of race and/or genderinavariety of measures—wage, worklife expectancy, andeducation level, primarily—thismodelassumes genderisconsidered for worklife culations made by any forensic economist, asthoseeconomists consider many more variables, butare rather illustrative examples. Whileeconomists include

Race, Ethnicity, andGender 41 High School College-educated In onecorner of thelaw, minoritiesandwomen are often valued less, higher 23% $925K GETHIGHER COMPENSATION ACROSS THE BOARD 40 Raceand Bachelor’s + 33% Impact Your Life’s Worth - $1.72M - whites. arrested fordrugpossessionthan are 2.5timesmorelikelytobe whites, AfricanAmerican adults using drugsatsimilarratesas onment ofwhites, rate thatis5.1timestheimpris incarcerated instateprisonsata tory bias. AfricanAmericansare of whicharerifewithdiscrimina the criminaljusticesystem, both of policingandinvolvementwith tionately subjectedtohighlevels Latino menarealsodispropor ination, AfricanAmericanand In additiontofacingpaydiscrim a similarlysituatedwhiteman. only 80%ofthehourlywages Master’s + 30%

$2.12M 44 Latinosareimprisoned 43 anddespite WAPO; Wonkblog. FEMALE WHITE WHITE MALE - 42 -

- - (Oct. 25,2016), https://www.washingtonpost.com High School all educationlevels, worsensasa The genderwagegapexistsat gardless oftheireducationlevel. significant discrimination, re gender, womenofcoloralsoface At theintersectionofraceand taining employment. difficulties inobtainingandmain record oftenleadstolife-long of whites. at aratethatis1.4timesthe 63 centsand54cents, respective Latina womentypicallymakeonly African Americanwomenand both menandwomenwork. occurs withinoccupationswhere woman’s careerprogresses, and higher 74% $694K 45 Formany, acriminal Bachelor’s + 65% $1.79M 46

47 Master’s -

+54%

$1.39M - - - More recently, ten states strides in recent decades, in part due to numerous statutes passed have passed strong to address historical gender- and race/ethnicity-based inequalities. equal pay protection In 1963, the Equal Pay Act was passed to help ensure that men laws prohibiting pay and women are given equal pay for equal work within the same discrimination and establishment.53 In 1964, Congress barring employers from passed Title VII of the Civil Rights Act to prohibit discrimination asking about salary on the basis of gender, race, and “We must not assume ethnicity in employment.54 Since history in an attempt to the implementation of the Equal that individuals forever Pay Act and Title VII, labor force further close the gender participation rate by women has remain shackled by the doubled.55 Between 1966 and 2013, wage gap. African American participation bounds of community rates in the workforce increased ly, for every dollar paid to their from 8.2% to 14%.56 Protection 48 or class. The law white, male counterparts. Afri- from discrimination has helped can American and Latina women women and people of color to with a college degree only earn access jobs, including higher-pay- loves certainty and about 70% of the hourly wages of ing supervisory and management a white college-educated man.49 positions, and higher education. economy of effort, but African American women with an In 1960, only 15% of managers advanced degree earn about $7 were women, but by 2009, almost the law also respects an hour less than white men who 40% of managers were women.57 only have a bachelor’s degree.50 individual aptitudes Mothers, particularly mothers of Today, there is a continued socie- tal focus on increasing racial and color, are offered lower starting and differences.” salaries and are perceived to be gender equality. More recently, several states have passed strong less competent than equally qual- — Greyhound Lines, Inc. ified fathers.51 African American equal pay protection laws prohib- mothers and Latina mothers are iting pay discrimination and bar- v. Sutton, 765 So. 2d 1269, paid just 51 cents and 46 cents for ring employers from asking about 1277 (Miss. 2000) every dollar a white father makes, salary history in an attempt to respectively.52 further close the gender and racial wage gap.58 And, several states, While systemic gender and race including California, Illinois, and discrimination continues to Massachusetts, have all passed permeate our society, legislative resolutions setting voluntary and policy reforms aim to reme- goals for corporate boards to have dy these ills. As a result, women a minimum number of women and people of color have made directors within a specified time

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 7 period to increase diversity at who later became the first African ceration rates in communities of management levels.59 In doing so, American President, three African color will minimize collateral con- these states cited studies finding American state governors, and 114 sequences and increase economic a correlation between boardroom African American U.S. House Rep- opportunities. gender diversity and enhanced resentatives. Of all active federal These reforms demonstrate the corporate performance.60 Compa- courts of appeal judges, 36% are ongoing efforts to tackle inequal- nies themselves have also joined women and 7% are women of col- ity and create equal economic efforts to promote diversity. Com- or.63 In 2009, Sonia Sotomayor was opportunities for people of color panies like Google, Apple, Yahoo, appointed to the Supreme Court and women. Calculating damag- and Salesforce, among others, of the United States and became es for awards in tort cases based voluntarily publish annual diver- the first Latina justice. There, she on race/ethnicity- and gen- sity employment numbers, leading joined two other women, Justice der-specific data fails to account to increased accountability.61 Ruth Bader Ginsburg and Jus- for potential future progress of tice Elena Kagan, and one other While more work needs to be women and people of color as person of color, Justice Clarence done to increase diversity at every society continues to work towards Thomas. level, high profile jobs in politics eliminating gender and racial and law slowly have become more Some progress has also been made disparities. As Judge Michael Mills accessible to women and people on the criminal justice front. held in Greyhound Lines v. Sutton, of color. In 1965, there were zero Since 2007, more than 30 states “We must not assume that indi- African American U.S. Senators have implemented laws to re- viduals forever remain shackled or state governors and only six duce prison sentences, eliminate by the bounds of community or African American U.S. House Rep- mandatory minimum sentences, class. The law loves certainty and resentatives.62 Since then, there expand parole eligibility, and economy of effort, but the law also have been 10 African American strengthen diversion programs.64 respects individual aptitudes and Senators, including Barack Obama Legislative efforts to reduce incar- differences.”65

V. Reforms

Legislators, judges, and scholars To date, only one discrimination. The Fair Calcula- are starting to recognize the prob- tions in Civil Damages Act of 2016 lems inherent in using race/eth- federal legislative was introduced in the Senate by nicity- and gender-based statistics U.S. Senators Cory Booker (D-NJ) in the calculation of civil damages effort has attempted and Kirsten Gillibrand (D-NY) and and have taken some steps to introduced in the House by U.S. address them. to address the problem Representatives Joseph Kennedy III (D-MA) and Mia Love (R-UT).66 A. Federal Reform Efforts of civil damages that The bill sought to prohibit fed- To date, only one federal legisla- eral courts from awarding civil tive effort has attempted to ad- perpetuate racial and damages “using a calculation dress the problem of civil damages for the projected future earning that perpetuate racial and gender gender discrimination. potential of [a] plaintiff that takes

8 | How Race, Ethnicity, and Gender Impact Your Life’s Worth into account the race, ethnici- using race and gender-based ty, gender, religion, or actual or data. During the notice-and-com- B. State Legislative Proposals perceived sexual orientation of ment period, at least two groups, and Reforms in Similar Areas the plaintiff.”67 The bill directed a group of eleven members of Most states are silent on the the Secretary of Labor to “develop Congress and the National Or- disparities in damage calculations guidance for forensic economists ganization of Women (“NOW”), caused by race/ethnicity- and gen- to develop inclusive future earn- submitted letters opposing the der-specific future earnings cal- ings tables,” and, in conjunction proposed rules for being discrimi- culations in civil damage awards. with the Attorney General, to natory against women and people Only two states, North Carolina “develop guidance for States on of color. On January 14, 2002, and New Jersey, require the use of how to make calculations of future Congresswoman Carol Maloney a blended, race- and gender-neu- earnings in State tort proceed- (D-NY) and ten other members tral, life expectancy table.78 Only ings free of [such] bias.”68 The bill of Congress, submitted a letter one state, Arizona, appends a separately directed the Judicial to the Department of Justice, the blended, race- and gender-neutral Conference of the United States agency charged with adminis- life expectancy table to its model and the Administrative Office of tering the Special Compensation the United States Courts to study Fund, criticizing the proposed use Most states are silent how segregation along the enu- of the “Worklife Estimates” charts merated lines has affected civil issued by the U.S. Department of on the disparities in damage awards, and the Federal Labor, Bureau of Labor Statistics Judicial Center to train judges on in 1979.73 They argued that these damage calculations “how to use tables on future earn- charts, which showed that women caused by race/ ings in evidence that comply with work on average five years less this Act.”69 In introducing the bill, than men were “‘invalid’ and ‘out ethnicity- and gender- Senator Gillibrand called the use of date.’”74 Likewise, on January of such statistics “one of the most 22, 2002, NOW submitted a letter specific future earnings damaging and offensive conse- arguing that to base compensa- quences of America’s pay inequal- tion on the “stubbornly persistent calculations in civil ity problem.”70 The bill never left [race and gender] wage gap” would the Senate Judiciary Committee or violate Equal Protection and Due damage awards. the House Subcommittee on the Process without any “compelling” Constitution and Civil Justice.71 government objective.75 At around jury instructions.79 A handful of the same time, the NAACP Legal states have either statutes or jury Related federal reform efforts Defense Fund also came out in instructions that use race-neutral have been successful in pro- public support of NOW’s posi- but gender-specific life expectan- hibiting the use of race and/or tion.76 The Fund’s Special Master cy and work-life expectancy ta- gender in damage calculations. Kenneth R. Feinberg ultimately bles.80 A few states have gone the On September 22, 2001, Congress announced final administrative other way and either mandate or established the September 11th rules that compensated all victims recommend the use of race- and Victim Compensation Fund, which using race-neutral, male tables “to gender-specific tables.81 was designed to provide a no-fault avoid any gender bias in assumed alternative to tort litigation for While the majority of state future work life patterns and to those physically injured or killed legislatures have not addressed ensure consistency.”77 in the 9/11 attacks.72 Initially, the whether civil damages should take fund proposed distributing awards into account race, ethnicity, and/

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 9 or gender, certain state legisla- 1. Race, Ethnicity, and tures have addressed the use of Gender-Based Tables such data in other areas, such Are Unreliable as workers’ compensation. For Several courts have rejected race/ example, in five states that have ethnicity- or gender-based sta- no guidance at all on the use of tistics on the ground that such race, ethnicity, and/or gender in data are inherently inaccurate the calculation of civil damages, and unreliable for the purpose of Kentucky,82 Montana,83 Nebraska,84 making future projections. Courts Nevada,85 and South Dakota,86 often reason that because actuari- state legislatures or agencies have al tables are based only on histor- “The legal system does promulgated statutes, court rules, ical facts, they cannot accurately or regulations requiring the use of account for the pace of future not work fairly and with race-neutral life expectancy tables progress for women and people of for disability calculations under color in the workforce. In a case due process if one class workers’ compensation. In these from the 1980s, Judge Raymond states, race cannot be used to J. Pettine of the federal district of litigants is unduly calculate workers’ compensation, court of Rhode Island refused to but, in calculating civil damage credit an expert’s reduction of a burdened in litigation awards followed by an injury, woman’s estimated working life there is no prohibition on relying by 40% because it was based on on race-specific data. a survey of women’s work histo- through the application ries between 1978 and 1980.88 “As C. Reform Efforts from a factual matter,” Judge Pettine of inappropriate ‘race’- the Bench reasoned, “I seriously doubt the Consulting race/ethnicity- and/ based statistics.” or gender-based statistical tables “It can no longer or relying on experts who con- — Judge Weinstein, sult them remains the prevailing automatically be assumed McMillan v. City of New York, practice among judges and juries that women will absent 253 F.R.D. 247, 255 today. However, a small number of courts have rejected calculations themselves from the (E.D.N.Y.). that segregate injured plaintiffs based on one or both categories.87 work force for prolonged These judges generally have found that the use of race/ethnicity and intervals during their gender-based tables is unreliable and discriminatory. One federal child-bearing/child- judge in New York, Judge Wein- stein, has held the use of race- rearing years.” based tables is unconstitutional. — Judge Pettine, Reilly v. United States

10 | How Race, Ethnicity, and Gender Impact Your Life’s Worth probative value of such a statis- federal district judge in Washing- “[e]thnicity, like race . . . tic with respect to twenty-first ton, D.C. explained that “it would century women’s employment be inappropriate to incorporate is a fictitious, changing, patterns, particularly in light current discrimination resulting in of current, ongoing changes in wage differences between the sex- and unreliable social women’s labor force participation es or races or the potential for any rates.”89 The First Circuit echoed future such discrimination into a construct” Judge Pettine’s concerns, reason- calculation for damages resulting ing on appeal that “[i]n an envi- from wages.”95 — Judge Weinstein, ronment where more and more In U.S. v. Bedonie, a federal dis- G.M.M. v. Kimpson women work in more and more trict court in Utah also rejected responsible positions, and where the use of both race-based and 3. Race, Ethnicity, and signs of the changing times are all gender-based statistics out of Gender-Based Tables around us, it can no longer auto- Are Unconstitutional anti-discrimination concerns.96 matically be assumed that women That case involved restitution Among the several judges who will absent themselves from the claims in two unrelated homi- have rejected the use of race/eth- work force for prolonged inter- cide cases involving a 21 year old nicity and gender-based tables, vals during their child-bearing/ Native American male with a high Judge Weinstein stands out as child-rearing years.”90 school education who was killed the only federal judge to have by a drunk driver and a three repeatedly held that race-based 2. Race, Ethnicity, and statistical tables are unconstitu- Gender-Based Tables month old Native American girl 97 tional. In McMillan v. City of New Are Discriminatory who was killed by her father. York, Judge Weinstein first held Several courts also have rejected To perform lost income calcula- that when a judge or jury consid- race/ethnicity- or gender-based tions, the court-appointed expert ers a race-based actuarial table, statistics on the ground that the used Native American race-based the claimant’s rights under the use of such data is discrimina- statistics and recommended Equal Protection Clause of the tory.91 In one case, the Court of substantially reducing the victims’ 98 U.S. Constitution are violated. Federal Claims declined to use earnings projections. The expert Judge Weinstein reasoned that gender-based actuarial tables argued that the Native American (1) “[j]udicial reliance on ‘racial’ to calculate damages under the man would receive only 58% of classifications constitutes state Childhood Vaccine Injury Act the average earnings of a similarly action”;101 (2) “state action in because the result would unfairly situated white man and the Native reliance on ‘race’-based statistics penalize women.92 “Does it follow American girl would receive only triggers strict scrutiny”;102 and (3) that because some women have 76% of the average earnings of a 99 the state presumably cannot meet historically been able to spend similarly situated white female. that rigorous review standard. He years out of the workforce, female In response, the court invoked its concluded that, “[e]qual protec- children in the Program should discretionary powers and declined tion in this context demands that always get substantially smaller to reduce the awards as recom- the claimant not be subjected to awards for ‘lost earnings’ than mended, reasoning that “as a mat- a disadvantageous life expectan- male children?” the judge asked.93 ter of fairness, the court should cy estimate solely on the basis He answered: “I do not think so.”94 exercise its discretion in favor of a ‘racial classification.’”103 To Similarly, in refusing to apply an of victims of violent crime and “allow[] the use of ‘race’-based African American male average against the possible perpetuation 100 life expectancy tables, which are earnings table to a biracial child, a of inappropriate stereotypes.” based on historical data,” courts

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 11 would be “reinforcing the under- domestic and maternal roles as construct more than a biological lying social inequalities of our wives and mothers, and downplay difference.111 Instead, disparities society rather than describing women’s roles as workers and between “races” are “associated a significant biological differ- independent economic actors.”108 with socioeconomic differences ence.”104 In so holding, Judge Professor Jennifer Wriggins of the and tend to diminish significantly Weinstein relied in part on an University of Maine School of Law . . . when socioeconomic factors analysis developed by Professor has argued that the only plausible are controlled.”112 Accordingly, be- Martha Chamallas of the Ohio compelling state interest for jus- cause race-based statistics are in- State University Moritz College tifying use of race/ethnicity and herently unreliable, their use in a of Law.105 Professor Chamallas ar- gender-based tables—“accuracy courtroom to deprive someone of gued that judicial reliance on race/ in determining tort damages”—is his or her right to compensation ethnicity and gender-based tables inherently problematic, unre- constitutes “arbitrary and irratio- constitutes state action for equal liable, and, even if valid, not as nal state action,” and therefore a protection purposes, because “it is sufficiently “compelling” as other denial of due process.113 impossible to separate the use of court-approved interests.109 Seven years later, in G.M.M. v. the statistics from the underlying Though scholars have focused on Kimpson, Judge Weinstein stopped legal standard in the case.”106 Pro- potential equal protection viola- the defendant’s expert from testi- fessor Chamallas also explained tions, Judge Weinstein also held in fying about the percentage of peo- that, because “no principle of McMillan that reliance on race- ple of Latinx descent with mas- constitutional law is more firmly based tables violates the Consti- ter’s degrees, on constitutional entrenched than the anti-dis- tution’s Due Process Clause. He grounds.114 Judge Weinstein wrote crimination principle as applied began with the premise that “[t] that “[e]thnicity, like race . . . is a to explicit racial classifications,” here is a right—in effect a proper- fictitious, changing, and unreliable the use of race-based data fails ty right—to compensation in cases social construct,” and that racial the rigorous level of strict scrutiny of negligently caused damages to disparity in achievement is often required to pass constitutional the person under state and federal just a front for socio-economic muster.107 Although use of gen- law.”110 The use of race-based factors.115 Had Judge Weinstein in der-based statistics would have statistics to calculate compensa- this case accepted the defendant to survive a less rigorous form of tion violates this property right expert’s race-based calculations, scrutiny, “[t]he precedents indi- because it “is not scientifically the injured Latino child would cate that the Court is hostile to acceptable in our current hetero- have received half the damages gender classifications premised on geneous population” to categorize award a similarly situated white traditional sex-role assumptions people based on race, a social child would have received.116 that tend to reinforce women’s

12 | How Race, Ethnicity, and Gender Impact Your Life’s Worth VI. Recommendations

The use of race/ethnicity- and/or Finally, the practice is inconsis- We urge state legislators gender-based data in calculating tent with new laws that are being lost earnings not only deprives passed aimed at reducing discrim- to pass laws that women and people of color, and by ination and promoting equality. extension their families and com- We urge state legislators to pass prohibit the use of wage munities, of fair compensation, laws that prohibit the use of wage but also perpetuates negative, and earnings tables delineated by and earnings tables inaccurate stereotypes that dimin- race and gender in the calculation ish the individual’s worth and fail of damages so that the practice is delineated by race and 117 to account for human potential. no longer detrimental to women gender in the calculation The practice provides economic and people of color. Specifically, justification for the devaluation of states should codify in statutes of damages so that the these communities, which could that future earnings predictions in result in more reckless behavior any damages calculation may not practice is no longer by tortfeasors, because the per- be based on the race or the gender ceived “costs” of that conduct is of the plaintiff and that they may detrimental to women lower.118 It risks decreasing access not rely on racial or gender stereo- to justice when these torts do types surrounding gender identity, and people of color. occur because plaintiffs’ attorneys sexual orientation, family choices are less willing to take on cases (including marriage and mother- perceived to have lower-value. hood), or professional goals.

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 13 Endnotes

1 Note: The scope of this report is 6 See Kim Soffen, In One Corner of the Approach to Targeting a Group at High limited to the impact of race/ethnic- Law, Minorities and Women Are Often Risk, Ctr. For Disease Control & Prev. ity-based damage award calculations Valued Less, Wash. Post; Wonkblog 1-11 (Aug. 7, 2009), https://www. on African Americans and Latinxs. (Oct. 25, 2016), https://www.washing- cdc.gov/mmwr/preview/mmwrhtml/ The report acknowledges that other tonpost.com/graphics/business/wonk/ rr5809a1.htm; see also Biomonitoring: people of color are impacted and that settlements/. Almost 95% of personal Lead, Envtl. Prot. Agency (Oct. 2015), a discussion of African Americans and injury cases are settled behind closed https://www.epa.gov/sites/production/ Latinxs is not inclusive. For an analy- doors and these settlements are files/2015-10/documents/ace3_lead. sis of Asian-American wage issues, see almost always attached to confidenti- pdf. The Wage Gap and Asian Women, Nat’l ality agreements. Because of the lack 13 See Terry Gross, A ‘Forgotten History’ Women’s Law Ctr. (Mar. 2017), https:// of transparency surrounding personal Of How the U.S. Government Segregated nwlc-ciw49tixgw5lbab.stackpathdns. injury cases, the data available to show America, NPR (May 3, 2017), com/wp-content/uploads/2017/03/ the differences in awards given in each https://www.npr.org/2017/05/03 Asian-Women-Equal-Pay-3.pdf. For case is limited. /526655831/a-forgotten-histo- an analysis of the issues impact- 7 Michael L. Brookshire, Michael R. ry-of-how-the-u-s-government-segre- ing Native Americans, see Kayla Luthy, & Frank L. Slesnick, 2006 Survey gated-america. Patrick & Jasmine Tucker, Equal of Forensic Economists: Their Methods, 14 See Greenberg, supra note 4, at 430; Pay for Native Women, Nat’l Wom- Estimates, and Perspectives, 19 J. Foren- Lead-Based Paint Poisoning Preven- en’s Law Ctr. (Sept. 2017), https:// sic Econ. 35, 37 (2006). tion Act, Pub. L. No. 91–695, 84 Stat. nwlc-ciw49tixgw5lbab.stackpathdns. 8 Most frequently cited tables include: 2078 (1971), https://www.gpo.gov/ com/wp-content/uploads/2017/09/ the U.S. Department of Health and fdsys/pkg/STATUTE-84/pdf/STATUTE- Equal-Pay-for-Native-Women-2017. Human Services, National Center 84-Pg2078.pdf. pdf; Algernon Austin, Native Amer- for Health Statistics’ United States 15 See generally David E. Jacobs et. al., The icans and Jobs: The Challenge and Life Tables (“U.S. Life Tables”), Prevalence of Lead-Based Paint Hazards the Promise, Econ. Pol. Inst. (Dec. 17, which are published annually, and in U.S. Housing, 110 Envtl. Health Per- 2013), https://www.epi.org/files/2013/ contain numerous life-expectancy sp. A599, A606 (2002) (finding that 35% NATIVE-AMERICANS-AND-JOBS- tables categorized by race, gender, of low-income housing within the U.S. The-Challenge-and-the-Promise.pdf; and Latinx origin; the U.S. Census contained lead-based paint hazards). Discrimination in America: Experiences Bureau and Bureau of Labor Statistics’ 16 See generally Jennifer Wriggins, Ge- and Views of Native Americans, NPR, Current Population Survey (“CPS”), netics, IQ, Determinism, and Torts: The Robert Wood Johnson Found. & Harvard which is an annual report containing Example of Discovery in Lead Exposure T.H. Chan Sch. of Pub. Health (Nov. race- and gender-specific tables on Litigation, 77 B.U. L. Rev. 1025, 1029 2017), https://cdn1.sph.harvard.edu/ average income and poverty rates; (1997). wp-content/uploads/sites/94/2017/11/ the Center for Disease Control and 17 Scientists from the Environmental NPR-RWJF-HSPH-Discrimination-Na- Prevention’s Healthy Life Expectancy Protection Agency recently found tive-Americans-Final-Report.pdf (the (“HLE”) tables, which are race- and that historic racism and economic findings here refer to people who gender-specific predictions of individ- inequality are major factors in the self-identify as “American Indian,” uals’ work-life based on probability location and development of facilities “Alaska Native,” or “Native Ameri- of death at a given age and likelihood with high rates of pollution. See Ihab can”). that an individual in a specific age/ Mikati, et al., Disparities in Distribution 2 Jennifer B. Wriggins, Constitution Day gender/racial group would be an active of Particulate Matter Emission Sources Lecture: Constitutional Law and Tort member of the work force; and the U.S. by Race and Poverty Status, 108 Am. J. Law: Injury, Race, Gender, and Equal Bureau of Labor Statistics’ Work-life of Public Health 480 (Apr. 2018). Protection, 63 ME. L. Rev. 263, 274-75 Expectancy Tables, which were last 18 Jim Erickson, Targeting Minority, (2010) (hereinafter “Wriggins I”). published in 1986, but at least some Low-Income Neighborhoods for Hazard- 3 Kimberly A. Yuracko & Ronen experts rely on a similar methodology ous Waste Sites, U. Mich. News (Jan. 9, Avraham, Valuing Black Lives: A to calculate work-life expectancy. 2016), https://news.umich.edu/target- Constitutional Challenge to the Use of 9 Luthy & Slesnick, supra note 7, at 35. ing-minority-low-income-neighbor- Race-Based Tables in Calculating Tort 10 Anne M. Anderson, How Much Are You hoods-for-hazardous-waste-sites/. Damages, 106 Calif. L. Rev. 325, 327 Worth? A Statutory Alternative to the 19 Living in the Shadow of Danger: Poverty, (2018). Unconstitutionality of Experts’ Use of Race, and Unequal Chemical Facility 4 Laura Greenberg, Compensating the Minority Based Statistics, 73 Wash. & Hazards, Ctr. for Effective Gov’t (Jan. Lead Poisoned Child: Proposals for Mit- Lee L. Rev. Online 206 (2016) (citing 2016), https://www.foreffectivegov. igating Disciminatory Damage Awards, Childs v. United States, 923 F. Supp. org/shadow-of-danger/. 28 B.C. Envtl. Aff. L. Rev. 429, 437 1570, 1580 (S.D. Ga. 1996)); see also 20 While the presence of a corporation (2004). Greenberg, supra note 4, at 441. in a racial minority community may 5 Sens. Booker and Gillibrand, Reps. Ken- 11 Greenberg, supra note 4, at 430. increase employment opportunities nedy and Love Introduce Bill to Address 12 Anne M. Wengrovitz & Mary Jean and better economic development, Discriminatory Legal Practices, (Dec. Brown, Recommendations for Blood such benefits are outweighed if the 1, 2016), https://www.booker.senate. Lead Screening of Medicaid-Eligible corporation fails to comply with gov/?p=press_release&id=499. Children Aged 1-5 Years: an Updated

14 | How Race, Ethnicity, and Gender Impact Your Life’s Worth environmental safety regulations and Super. Ct. Aug. 2, 2013), https://www. long history of discrimination against the community suffers from onerous cpmlegal.com/media/cases/147_RICH- transgender individuals in housing and and costly health issues. See Martha MOND%20CHEVRON%20COM- criminal justice, as well as high rates of Chamallas, Civil Rights in Ordinary Tort PLAINT.pdf. unemployment and homelessness. See Cases: Race, Gender, and the Calculation 29 CBS Article, supra note 27. generally Loren D. Goodman, For What of Economic Loss, 38 Loy. L.A. L. Rev. 30 54 So. 865, 869 (La. 1911). It’s Worth: The Role of Race and Gender 1435, 1441 (2005). 31 The Saginaw & The Hamilton, 139 F. Based Data in Civil Damages Awards, 70 21 Richmond (City), California, State & 906, 914 (S.D.N.Y 1905). Vand. L. Rev. 1353, 1379 (2017); Jaime County QuickFacts, U.S. Census Bureau, 32 Id. Johnson, Recognition of the Nonhuman: https://www.census.gov/quickfacts/ 33 Vincent v. City of Philadelphia, 35 The Psychological Minefield of Trans- fact/table/richmondcitycalifornia/ A.2d 65, 67 (Penn. 1944). gender Inequality in the Law, 34 Law & PST045216 (last visited May 8, 2018). 34 Frankel v. United States, 321 F. Supp. Psychol. Rev. 153, 154 (2010). 22 Ellen Choy & Ana Orozco, Climate 1331, 1338 (E.D. Pa. 1970), aff’d sub 41 Valerie Wilson & William M. Rodgers Change: Catalyst or Catastrophe? 16 nom. Frankel v. Heym, 466 F.2d 1226 III, Black-White Wage Gaps Expand with Race, Poverty & the Envt. 2, 43-46 (Fall (3d Cir. 1972). Rising Wage Inequality, Econ. Pol. Inst. 2009). 35 Id. at 1337-38. (Sept. 20, 2016), http://www.epi.org/ 23 See Environmental Justice Case Study: 36 Feldman v. Allegheny Airlines, Inc., publication/black-white-wage-gaps- West County Toxics Coalition and 382 F. Supp. 1271, 1286 (D. Conn. expand-with-rising-wage-inequality/. the Chevron Refinery,W est County 1974), aff’d in part, rev’d on other 42 Eileen Patten, Racial, Gender Wage Toxics Coalition, http://www.umich. grounds, 524 F.2d 384 (2d Cir. 1975). Gaps Persist in U.S. Despite Some edu/~snre492/sherman.html (last 37 See, e.g., Wash. Metro. Area Transit Progress, PEW Research Ctr. (July 1, visited May 8, 2018). Auth. v. Davis, 606 A.2d 165, 178 (D.C. 2016), http://www.pewresearch.org/ 24 Michael Okwu, California City Wages App. 1992) (holding that there was no fact-tank/2016/07/01/racial-gender- War Against Environmental Rac- authoritative source for the expert’s wage-gaps-persist-in-u-s-despite- ism, AlJazeera Am. (Feb. 17, 2014), opinion that the decedent, a young some-progress/. http://america.aljazeera.com/watch/ African American girl, “would have 43 Ashley Nellis, The Color of Justice: shows/america-tonight/america-to- been the one among 200 women to Racial and Ethnic Disparity in State night-blog/2014/2/17/calif-city-leader- graduate from graduate school”). Prisons, The Sentencing Project (June slockhornswithoilgiantoverhealthwor- 38 Gilborges v. Wallace, 379 A.2d 269, 14, 2016), https://www.sentencing- ries.html; see generally Major Accidents 276-278 (N.J. Super. Ct. App. Div. project.org/publications/color-of-jus- at Chemical/Refinery Plants, Contra 1977) (holding that even though the tice-racial-and-ethnic-disparity-in- Costa Health Services, https://cchealth. decedent, a sixteen-year-old girl, state-prisons/. org/hazmat/accident-history.php (last had expressed lifelong interest in 44 Every 25 Seconds: The Human Toll of visited May 8, 2018); see also Fighting becoming a practicing veterinarian, Criminalizing Drug Use in the Unit- for Environmental Justice in Richmond, there was “no support” that she would ed States, Human Rights Watch & CA, Earthjustice, https://earthjustice. “probably have become a veterinarian Am. Civil Liberties Union, 5-6 (Oct. org/our_work/cases/2008/protect- student or graduate” because there 12, 2016), https://www.hrw.org/re- ing-global-climate-and-communi- was “no veterinary school in the State port/2016/10/12/every-25-seconds/hu- ty-health-from-oil-refinery-impacts of New Jersey and only one in the man-toll-criminalizing-drug-use-unit- (last visited May 8, 2018) (finding that, State of Pennsylvania, with conse- ed-states. in 2014, residents of Richmond, Cali- quent grave difficulty of a student 45 Nellis, supra note 43. fornia negotiated a $90 million com- from New Jersey obtaining admission 46 Marina Duane, Nancy La Vigne, munity benefits package from Chevron, to such school.”), rev’d in part on other Mathew Lynch, & Emily Reimal, which may be the largest community grounds, 396 A.2d 338 (N.J. 1978). Criminal Background Checks: Impact on benefits package in the U.S.) 39 See e.g. Hoffman v. Sterling Drug, Inc., Employment and Recidivism, Urban Inst. 25 Maya Cohen, Big Oil, Small Town: The 374 F. Supp. 850, 859-60 (M.D. Pa. (Mar. 2017), https://www.urban.org/ Fight for Environmental Justice in Rich- 1974). The male plaintiff never took a sites/default/files/publication/88621/ mond, California, Medium (Dec. 5, 2017), licensing exam to become a registered criminal-background-checks-im- https://medium.com/@mayahrc/ architect, but the court nonetheless pact-on-employment-and-recidivism. big-oil-small-town-the-fight-for-envi- assumed he would become an archi- pdf. The majority of employers con- ronmental-justice-in-richmond-cali- tect because “grim statistics on the duct criminal background checks be- fornia-97324244caff. percentage who fail the architectural fore hiring and a criminal record may 26 Community Health and Wellness, City of examination [are not] dispositive of impact the employer’s hiring decision. Richmond General Plan 2030, Element the issue of admissibility…”. African American applicants are most 11, City of Richmond, http://www. 40 Gender-based award calculations also impacted by discrimination in hiring ci.richmond.ca.us/DocumentCenter/ reinforce binary gender identities against people with criminal records. View/8579/Health-and-Wellness-Ele- which fail to account for transgender One study showed that only 5% of ment (last visited May 8, 2018). or gender queer individuals. Experts African American job applicants with 27 Chevron, Richmond Reach $5 Million may choose to use the gender-identity criminal records received callbacks Settlement Over Refinery Fire, CBS SF of the individual prior to transition while 17% of white applicants with Bay Area (May 4, 2018), http://san- or may use the gender-identity of the criminal records received callbacks. francisco.cbslocal.com/2018/05/04/ individual after transition, conflict- Emily Fetsch, No Bars: Unlocking the chevron-richmond-reach-5-million- ing with that individual’s gender Economic Power of the Formerly Incar- over-refinery-fire/ (hereinafter “CBS identity at the time. Or, the expert cerated, Ewing Marion Kauffman Found., Article”). may calculate the award specifically 4 (Nov. 2016), http://www.kauffman. 28 Complaint, City of Richmond v. Chevron for a transgender individual. In doing org/~/media/kauffman_org/microsites/ Corporation, Case No. C-13-01654 (Ca. so, the expert would perpetuate a mayors2016/occupational%20licens-

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 15 ing%20and%20the%20formerly%20 ences Versus American Expectations, in Economic Analysis & Policy, Vol. 6 Iss. incarcerated_final.pdf. U.S. Equal Emp’t Opportunity Comm’n 1, 1-2 (2006). 47 Corrine A. Moss-Racusin et al., Science (July 2015), https://www.eeoc.gov/ 73 In 2004, the Department of Justice Faculty’s Subtle Gender Biases Favor eeoc/statistics/reports/american_expe- clarified that the original methodology Male Students, Proceedings of the Nat’l riences/#african_american. was not based on expected work life Acad. of Scis. (Oct. 9, 2012), http:// 57 Fifty Years After the Equal Pay Act, data from 1979, but rather on a 1999- www.pnas.org/content/109/41/16474. supra note 55, at 6. 2000 publication entitled “A Markov abstract#aff-1; see also Judy Gold- 58 Kate Nielson, AAUW Policy Guide to Process Model of Work-Life Expectan- berg Dey and Catherine Hill, Behind Equal Pay in the States, American Ass’n cies Based on Labor Market Activity in the Pay Gap, AAUW Educ. Found., 2 of University Women, https://www. 1997-1998,” by James Ciecka, Thomas (Apr. 2007), https://www.aauw.org/ aauw.org/resource/state-equal-pay- Donley, and Jerry Goldman in the Jour- files/2013/02/Behind-the-Pay-Gap.pdf laws/. nal of Legal Economics. Department of (finding that one year out of college, 59 See Michael Greene, State Lawmakers Justice, Civil Division, Victim Compen- women working full time earn only Push for More Diversity on Boards, sation Fund Frequently Asked Questions, 80% as much as their male colleagues, Bloomberg News (Aug, 7, 2015), Section 5 – Compensation for Deceased and that ten years after graduation, https://www.bna.com/state-lawmak- Victims, 5 – 6 (Apr. 13, 2004), https:// women working full time earn only ers-push-n17179934486/. www.justice.gov/archive/victimcom- 69% as much as their male colleagues). 60 Id. pensation/faq5.pdf. 48 The Wage Gap for Black Women 61 Ellen McGirt, Inside the Search Giant’s 74 Congresswoman Carolyn B. Maloney, State Rankings: 2016, Nat’l Wom- Effort to Get More Diverse—And to Women Victims of 9/11 & Their Families en’s Law Ctr. (Apr. 2018), https:// Change the Way We All See the World, Deserve Fair Compensation, January nwlc-ciw49tixgw5lbab.stackpathdns. Fortune (Feb. 1, 2017), http://fortune. 14, 2002, https://maloney.house.gov/ com/wp-content/uploads/2017/03/ com/google-diversity/. media-center/press-releases/wom- Black-Women-State-by-State-2018. 62 Anna Brown & Sara Atske, Blacks Have en-victims-911-their-families-de- pdf; The Wage Gap for Latina Women Made Gains in U.S. Political Leadership, serve-fair-compensation. State Rankings: 2016, Nat’l Women’s but Gaps Remain, PEW Research Ctr. 75 Letter from the NOW Legal Def. & Law Ctr. (Apr. 2018), https://nwlc-ci- (June 28, 2016), http://www.pewre- Educ. Fund to Kenneth L. Zwick, Dir. w49tixgw5lbab.stackpathdns.com/ search.org/fact-tank/2016/06/28/ Dep’t of Justice, Civil Div. (Jan. 22, wp-content/uploads/2017/03/Latina- blacks-have-made-gains-in-u-s-politi- 2002), https://www.justice.gov/ar- Women-State-by-State-2018.pdf. cal-leadership-but-gaps-remain/. chive/victimcompensation/interim/ 49 Patten, supra note 42. 63 Women in the Federal Judiciary: Still njan28/N002319.html. 50 Wilson & Rodgers, supra note 41. A Long Way to Go, Nat’l Women’s Law 76 Kim Soffen, In One Corner of the Law, 51 Shelley J. Correll, Stephen Benard & In Ctr. (Oct. 13, 2016), https://nwlc.org/ Minorities and Women Are Often Valued Paik, Getting a Job: Is There a Moth- resources/women-federal-judicia- Less, Wash. Post; Wonkblog (Oct. 25, erhood Penalty?, 112 Am. J. Sociology ry-still-long-way-go/. 2016), https://www.washingtonpost. 1297 (Mar. 2007), https://sociology. 64 31 States Reform Criminal Justice com/graphics/business/wonk/settle- stanford.edu/sites/default/files/pub- Policies Through Justice Reinvestment, ments/. lications/getting_a_job-_is_there_a_ Pew Charitable Trusts (Jan. 2016), 77 Kenneth R. Feinberg, Final Report of motherhood_penalty.pdf. http://www.pewtrusts.org/~/media/ The Special Master for the September 52 Motherhood Wage Gap for Black assets/2016/01/ pspp_jrireformmatrix- 11th Victim Compensation Fund of Mothers: 2015 State Rankings, Nat’l overview.pdf. 2001: Volume I, Dep’t of Justice, 31 Women’s Law Ctr. (May 2017), https:// 65 Greyhound Lines, Inc. v. Sutton, 765 (2004), https://pca-cpa.org/wp-con- nwlc-ciw49tixgw5lbab.stackpathdns. So. 2d 1269, 1277 (Miss. 2000). tent/uploads/sites/175/2016/01/ com/wp-content/uploads/2017/05/ 66 The bill arose out of the considerable September-11-Victim-Compensa- Black-Motherhood-Wage-Gap-Table. media attention surrounding Judge tion-Fund-Final-Report-Volume-I-1. pdf. Weinstein’s opinion in G.M.M. v. Kimp- pdf. This Final Report does not men- 53 Equal Pay Act of 1963, Pub. L. No. 88- son, infra note 102. See generally Loren tion race. However, the Special Master 38, 77 Stat. 56. D. Goodman, For What It’s Worth: The used the blended “All Active Males” 54 Civil Rights Act of 1964, Pub. L. No. Role of Race-and Gender-Based Data in tables to calculate future earnings for 88-352, Title VII, 78 Stat. 241, 253-66. Civil Damages Awards, 70 Vand. L. Rev. all claimants. Victim Compensation 55 Fifty Years After the Equal Pay Act: 1353, 1357 (May 2017). Fund Frequently Asked Questions, Dep’t Assessing the Past, Taking Stock of the 67 S. 3489, 114th Cong. § 3(a) (2016). of Justice, 5.34 (Apr. 13, 2004), https:// Future, Nat’l Equal Pay Taskforce, 6 68 Id. at § 4. www.justice.gov/archive/victimcom- (June 2013), https://obamawhitehouse. 69 Id. at § 5 & 6. pensation/faq5.pdf. archives.gov/sites/default/files/equal- 70 Id. 78 N.C. Gen. Stat. § 8-46; N.J. Ct. R. 1:13- pay/equal_pay_task_force_progress_re- 71 See H.R. 6417 (114th): Fair Calcula- 5. port_june_2013_new.pdf. tions in Civil Damages Act of 2016, 79 Ariz. Pattern Jury Instr. Civ. Personal 56 An official or manager is defined as GovTrack, https://www.govtrack.us/ Injury Damages (RAJI (Civil) PIDI) 5. an individual who plans, directs, and congress/bills/114/hr6417; S. 3489 80 Statutes in three states (Alabama, formulates policies, sets strategy — Fair Calculations in Civil Damages Georgia, and South Carolina) provide and provides the “overall direction Act of 2016, https://www.congress.gov/ life expectancy tables that are blended of enterprises/organizations for the bill/114th-congress/senate-bill/3489. by race but not gender. Ala. Code §§ development and delivery of products 72 Pub. L. No. 107-42, 115 Stat. 230 35-16-3, 35-16-4; Ga. Code Ann. §§ 24- or services, within the parameters ap- (2001); see also Frank D. Tinari, Kevin 14-44, 24-14-45; S.C. Code Ann. § 19-1- proved by boards of directors or other E. Cahill, and Elias Grivoyannis, Did 150. Three states, California, New governing bodies.” American Experi- the 9/11 Victim Compensation Fund Ac- York, and Washington, reference or ap- curately Assess Economic Losses?, Topics pend racially blended but gender-spe-

16 | How Race, Ethnicity, and Gender Impact Your Life’s Worth cific life expectancy tables in their www.irs.gov/pub/irs-drop/n-17-60.pdf 105 Id. at 255 (citing Martha Chamallas, model jury instructions, with New (last visited Mar. 31, 2018). Questioning the Use of Race-Specific and York’s jury instruction including both 86 S.D. Admin R. 47:03 Appendix A Gender-Specific Economic Data in Tort blended data and gender-specific data. (race-neutral but gender-specific Litigation: A Constitutional Argument, Cal. Jury Instr. Civ. 14.69 (appending a table). 63 Fordham L. Rev. 73 (1994)). table from the National Vital Statistics 87 See, e.g., United States v. Serawop, 505 106 Martha Chamallas, Questioning the Use Report); N.Y. Pattern Jury Instr. Civil F. 3d 1112, 1126-27 (10th Cir. 2007) of Race-Specific and Gender-Specific Appendix A (appending a table pub- (finding that the lower court acted cor- Economic Data in Tort Litigation: A lished in the National Vital Statistics rectly in eliminating minority-based Constitutional Argument, 63 Fordham L. Report); Wash. Pattern Jury Instr. Civ. statistics from consideration for dam- Rev. 73, 105 (1994); see also id. (“When 34.04; id. Appendix B (appending a ages). the court allows an expert to testify table published by the Insurance Com- 88 Reilly v. United States, 863 F.2d 149 as to the plaintiff’s future earning missioner of the State of Washington). (1st Cir. 1988). capacity, it makes a determination of Rhode Island provides by statute 89 Id. relevancy and an implicit judgment that race-neutral but gender-specific 90 Id. about the substance of the common work-life expectancy tables from the 91 The judge has discretion regarding law of damages.”). U.S. Department of Labor’s Bureau whether or not to allow the testimony 107 Id. at 111-12. of Labor Statistics (“BLS”) Bulletin from the witness. Drayton v. Jiffee 108 Id. at 117. 2254: Work Life Estimates: Effects of Chem. Corp., 591 F.2d 352, 362 (6th 109 Wriggins, supra note 2, at 274-75. Race and Education are “admissible in Cir. 1978). 110 253 F.R.D. at 255 (citing Martinez v. evidence.” 9 R.I. Gen. Laws § 9-19-38. 92 Childers v. Sec’y of Health & Human State of California, 444 U.S. 277, 282 New York includes the same table in Servs., 1999 U.S. Claims LEXIS 76, at (other citations omitted)). the appendix of its jury instructions. *56-57 (Fed. Cl. 1999). 111 Id. at 249. N.Y. Pattern Jury Instr. Civil Appendix 93 Id. at *57. 112 Id. at 250 (citing Audrey Smedley & B. 94 Id. Brian D. Smedley, Race as Biology is 81 Virginia and Rhode Island have codi- 95 Wheeler Tarpeh-Doe v. United States, Fiction, Racism as a Social Problem fied life expectancy tables that include 771 F. Supp. 427, 455 (D.D.C. 1991), is Real, 60 Am. Psychologist 16, 23 both blended and unblended tables. rev’d on other grounds, 28 F.3d 120 (2005)). V.A. Code Ann. § 8.01-419; 9 R.I. Gen. (D.C. Cir. 1994). Relatedly, the Mis- 113 Id. at 256; see also Kimpson, 116 F. Laws § 9-19-38. Colorado is the only sissippi Supreme Court held that it Supp. 3d at 135-40 (arguing the same). state that specifically mandates the was “unfair and prejudicial” to base a 114 Kimpson, 116 F. Supp. 3d. at 126. use of a race- and gender-specific life child’s projected income on both the 115 Id. at 148, 137; see also McMillan, 253 table. Colo. Rev. Stat. § 13-25-102. income of the mother and/or “some F.R.D. 250-51. Three states—Kansas, Pennsylvania, type of average income for persons of 116 Id. at 134-35 (Defendant’s expert pro- and Tennessee—appear to recommend the community in which they lived.” jected the child’s future economic loss the use of race- and gender-specific Greyhound Lines, Inc. v. Sutton, 765 between $1.5 million and $2.5 million life tables, but only Pennsylvania So.2d 1269, 1276 (Miss. 2000). The whereas plaintiff’s expert projected does not also include a blended table. Court did not directly address the ra- a total future economic loss between Pattern Inst. Kan. Civil 171.45; 8 Tenn. cial implications of these alternatives, $2.5 million and $4 million). Prac. Pattern Jury Instr. T.P.I.-Civil instead focusing on the socio-econom- 117 See, e.g., Expert Report at 3, Bushong v. Appendix E; Pa. Suggested Standard ic implications: “Both methods result Huebner, D.P.M., No. ADV100402, 2016 Civ. Jury Instr. (PA-JICIV) 7.240. in potentially disparate recoveries for WL 9825521 (Mont. Dist. Ct. Aug. 9, 82 803 Ky. Admin. Reg. 25:036 Appendix A children from affluent communities 2016) (“To determine [decedent’s] nor- (race-neutral and gender-specific but or with affluent parents, as opposed mal work-life expectancy, we utilized includes a combined column). to children from less affluent areas or The Markov Process Model of Labor 83 Mont. Admin. R. 24.29.1203(4) with less affluent parents.” Id. The Force Activity: Extended Tables of Cen- (Workers’ compensation insurers Court required that all calculations of tral Tendency, Shape, Percentile Points, “shall determine the remaining life projected future income for children and Bootstrap Standard Errors. These expectancy in accordance with the be based on a “rebuttable presump- tables provide work-life expectancy most recent Life Table: Expectation tion” of the national average set forth information for persons by gender and of Life at Single Years of Age, by Race by the United States Department of level of educational attainment.”). and Sex; United States, all races, both Labor. Id. at 1277. 118 Yuracko & Avraham, supra note 3, at sexes column, in Vital Statistics of the 96 United States v. Bedonie, 317 F. Supp. 327. United States, Volume II-Mortality, 2d 1285, 1315-19 (D. Utah 2004), rev’d Part A, U.S. Department of Health and on other grounds, 410 F.3d 656 (10th Human Services, Public Health Service, Cir. 2005). National Center for Health Statis- 97 Id. tics.”). 98 Id. at 1314. 84 Neb. Workers’ Comp. Ct. R. of Proc. 99 Id. Addendum 2. (blended life expectancy 100 Id. at 1319. table). 101 McMillan v. City of New York, 253 85 Nev. Rev. Stat. § 616C.495 (blended life F.R.D. 247 (E.D.N.Y 2008). expectancy table enacted in January 102 Id. at 255. 2017); Arslan Malik & Linda S. F. Mar- 103 Id; see also G.M.M. v. Kimpson, 116 F. shall, Updated Static Mortality Tables Supp. 3d. 126, 135-40 (E.D.N.Y 2015) for Defined Benefit Pensions Plans for (arguing the same). 2018, Internal Revenue Serv., https:// 104 McMillan, 253 F.R.D. at 250.

How Race, Ethnicity, and Gender Impact Your Life’s Worth | 17 The principal mission of the Lawyers’ Committee for Civil

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Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination and the resulting inequality of opportunity

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