Our legal system often must determine the monetary value of a person’s life to assess damages owed. To make this determination, usually after serious injury or death, our system calls upon forensic economists, experts used to help calculate the incalculable.
Many forensic economists take the victim’s race, ethnicity or gender into account when calculating what the victim would have earned throughout their lifetime, often reducing the amount of damages solely because the victim is Black or Latinx or a woman. As a result, white male victims routinely receive higher compensation than people of color and women in similar cases.
Calls to End Practice
Now, 16 of the nation’s most prominent civil rights organizations are calling upon the trade association for forensic economists to stop this practice once and for all by updating their ethics rules to explicitly prohibit it.
The practice of using a person’s identity to calculate damages is commonplace, but not because judges are endorsing it. The race- or gender-based calculations are often so buried in an economist’s calculations that even the judge doesn’t notice. And because more than 90 percent of personal injury and wrongful death lawsuits are settled out of court, most of this discrimination takes place behind closed doors.
For the last couple decades, in the rare cases when judges dig through the math and notice the inequity, they have uniformly rejected discriminatory calculations.
For example, in a case reported by The Washington Post, the family of a young boy who suffered severe lifelong impairments caused by lead paint successfully sued their landlord. When the time came for the jury to determine the boy’s monetary relief, attorneys for the landlord argued that, because the boy was Hispanic, he had a lower chance of obtaining an advanced degree and should therefore receive less money in damages for his projected future lost earnings.
Judge Jack Weinstein, who presided over the case, forcefully rejected the landlord attorneys’ reliance on the victim’s ethnicity to calculate his potential damages.
“Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American Dream,” Weinstein wrote. “A traditional, automatic, unthinking approach by experts in the field can no longer be tolerated.”
The practice of devaluing lives based on one’s identity can be egregious enough to occasionally grab the public’s attention. The September 11th Victim Compensation Fund initially planned to use race- and gender-based calculations to determine the amount of compensation 9/11 victims and their families would receive. Civil rights groups, including the NAACP Legal Defense Fund objected to the practice and pushed the Victim Compensation Fund to instead use white male data—unsurprisingly the most generous metric—to assess damages and compensate all victims equally.
But great court decisions and occasional public pressure hasn’t been enough. The most recent data available, from a 2009 National Association of Forensic Economists (NAFE) survey, showed that 44 percent of forensic economists considered race as a factor when calculating the projected annual wage for an injured child. A staggering 92 percent admitted to considering gender in these projections.
NAFE pulled those questions from subsequent surveys, likely due to the embarrassing results, but we understand from economists and practitioners the practice is still pervasive.
Courts, academics, politicians, and even some economists largely agree that using discriminatory calculations is wrong.
Lawmakers Want Change
In 2016, federal legislators including Senators Cory Booker (D-N.J.) and Kristen Gillibrand (D-N.Y.) introduced, but failed to pass, the Fair Calculations in Civil Damages Act, which sought to prohibit federal courts from awarding discriminatory civil damage awards.
More recently, California state Sen. Robert Hertzberg (D) introduced a bill seeking to do the same. The bill is currently pending.
And there seems to be a peer-reviewed article or news piece nearly every year highlighting the problem. Just last year, the Lawyers’ Committee for Civil Rights Under Law issued a comprehensive report on the topic.
While the “debate” may be over, the change is not moving fast enough. NAFE has the ability to fix this right now. More than a dozen legal and civil rights organizations are currently urging NAFE to take affirmative and meaningful steps, including updating its code of ethics, to ensure equality in the calculation of lost earnings by prohibiting the unconstitutional and unjust use of discriminatory data.
We all have an obligation to remedy the inequality in our society. We fail to live up to this obligation when we meet injustice with acquiescence.
Using gender and race to estimate future earnings deliberately undervalues the lives of women and people of color. The sordid history of segregation and misogyny still limits the opportunities and incomes of people today and, despite great gains, remain rampant.
Predicting the future based on the inequality of the past is anathema to both progress and justice. It entrenches injustice as inevitable, eternal, and irreparable. The NAFE must take the necessary steps to eradicate this discriminatory practice to ensure that all lives are equal before the law.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Lisa Cylar Barrett is director of policy at the NAACP Legal Defense and Educational Fund.
Dariely Rodriguez is Economic Justice Project director at the Lawyers’ Committee for Civil Rights Under Law.