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How Race, Ethnicity, and Gender Impact Your Life's Worth 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.washing tonpost.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
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