Earlier this year, California enacted SB 41, a bill which prohibits “the estimation, measure, or calculation of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death from being reduced based on race, ethnicity, or gender.” The sponsor of the bill, Senate Majority Leader Bob Hertzberg (D-Van Nuys), commented that “[t]his practice perpetuates systemic inequity, and it tells companies that if you do bad things in poor communities with disadvantaged populations, your financial liability will be smaller.” The practice of using race and gender-based data to calculate damage awards in tort cases is widespread, and there are no federal laws that ban the practice. California is the first state in the country to prohibit the practice. 

When race and gender are added as data points in estimating damages of a tort, the results systematically deny women and minorities the right to be compensated for legal wrongs on a par with everyone else. In the case of tortious injuries that restrict an individual’s future ability to work, loss of future earnings is a kind of compensatory damage awarded to provide the income that the individual would have been able to make were it not for the injury. The use of race and gender-based tables, at first glance, can appear to be a neutral, data-driven calculation, but upon closer inspection, it is a practice that unjustly devalues the lives of racial minorities and women. Plaintiffs come to court seeking compensation for injuries inflicted upon them. The use of the tables tells them that their harm is worth less than their white male counterparts.

Race and Gender-based Tables in Action

Once a court finds a person liable for a tort, expert witnesses are called upon by both parties to quantify damages. Expert witnesses frequently utilize actuarial tables for both adult and child plaintiffs in order to predict future income loss. For adult plaintiffs, experts take into account education and employment history, but also use race tables to predict both the number of years the plaintiff would have likely remained in the workforce and the plaintiff’s expected wages for the remainder of their career, which would inherently factor in the likelihood of promotions and salary increases. For children, the tables are used at two stages, which University of Maine Law School professor Jennifer Wriggins describes in the context of a lead paint poisoning case. First, a table is used to predict educational attainment based on the child’s gender and race. Second, experts predict income for someone of the same race, gender, and education level by plugging the predicted educational attainment into another table. 

For example, in G.M.M. v. Kimpson, a mother sued her landlord claiming that her infant son experienced central nervous system injury after absorbing dust from the lead paint in their apartment. Experts were called by both parties to predict the future income the child would have earned without the injury. The defense argued that damages should be reduced because the child’s Hispanic ethnicity meant that he was unlikely to obtain a college or graduate degree and thus unlikely to obtain elevated income. The harm from this argument became even more apparent in the actual questioning of witnesses in Kimpson. The defense attorney asked the plaintiff’s expert, “Okay. So in this particular case, . . . would you say that it is a high probability, a medium probability or a low probability that [G.M.M.], a Hispanic male, will attain a master’s degree?” The defense attorney sought to limit the amount of money G.M.M’s parents would receive solely because he was Hispanic. Ultimately, the court held that the use of race-based statistics is unconstitutional, violating both the Due Process and Equal Protection clauses.

Fundamentally, the use of race and gender-based data is yet another way to devalue racial minorities and women. The disparities found in race and gender-based data are the result of decades of intentional economic subjugation of these groups. The data doesn’t reflect an inherent assessment of capacity, but the impact of discriminatory policies and barriers that racial minorities and women are likely to face over the course of their lives. Further, the use of race and gender-based data subjects each individual within a particular race group to the average achievement within the broad class of their race. Especially in cases with debilitating injuries, part of what the defendant has taken from the plaintiff is the potential to achieve more than the racial and gender-based data would predict. To award greater damages to a white male child than a black female child is to say that a defendant that has harmed a black girl has inflicted less of a harm.

The use of race and gender-based data not only enforces existing discrimination, but also perpetuates current disparities into the future. If we presume that education and income gaps will shrink in the future, our courts should not accept the current disparity as an accurate prediction of an individual’s future. The purpose of tort damages is to make the plaintiff whole, but race-based averages do not accurately or appropriately accomplish this goal. If a four-year-old child is awarded damages for the income that an adult of their gender and race earns today, they do not receive the benefit of any progress in education and income gaps that will occur over the course of their life. 

What can be done?

  The legal community should take two critical actions. Plaintiff’s attorneys should protest the use of race and gender statistics in damages calculations. As a more comprehensive solution, states should implement laws like California’s SB-41 to prohibit race and gender-based damage calculation, rather than rely on court rulings. 

On the first point, case law is limited in this area, and many courts have accepted race and gender-based calculations without questioning them. There are several examples, in addition to Kimpson, where courts have rejected the use of race and gender tables (United States v. Bedonie, Reilly v. United States). Even if courts are empowered to reject race-based calculations of damages in this fashion, many will not even be asked to consider whether the tables should be used. Despite the fact that these tables disadvantage many plaintiffs, they have become such a standard practice that plaintiffs rarely object to their use, and, in fact, often introduce race and gender specific data themselves when assessing damages. Moritz College of Law professor Martha Chamallas, in her research on the use of race and gender tables, notes that plaintiff’s attorneys do not often object to the use of these tables, and posits that the lack of objection is due, in part, to the fact that “economists who testify as expert witnesses and the lawyers who try personal injury cases are unlikely to be primed to identify race and gender inequities in a context totally removed from a civil rights case.” Chamallas highlights a significant barrier to the departure from the use of race and gender-based data—customs are difficult to overcome. 

The use of race and gender-based tables to reduce tort damage awards should be stopped. The most comprehensive and direct solution is statutory, like the bill California passed this year. In the meantime, plaintiff’s attorneys will continue to bring tort cases, and should be primed to protest the use of race and gender-based tables in any damage calculations.