By Ian Mallery
Race and gender tables are commonly used in calculating the damages owed to a plaintiff as a means of discounting the award based on statistical predictions of future earnings. While facial race classifications receive strict scrutiny in almost every other area of the law,1 they are almost universally accepted in American courts when calculating tort damage awards.2 Once liability is found, both parties call expert witnesses who utilize actuarial tables to calculate past damages and future income loss.3 In most cases, these experts will use race and gender as a variable in this calculation.4 In practice, this discounts awards to minorities and women simply due to expected life outcomes of their groups as a whole.5
The practice of discounting tort damages on the basis of race and gender raises significant concerns regarding equal protection, the perpetuation of racism and sexism, and limiting the desired deterrent effect of tort remedies.6
The constitutional law argument is, on its face, straightforwardly against the practice. One would have to articulate a compelling government interest in discounting damage awards for different races of people, which would require a court to accept that determining the most “statistically accurate” compensation owed by a defendant is more valuable than awarding equal damage for equal harm.7 An added wrinkle, however, is that we are unlikely ever to see this argument raised past the trial court level. It is highly unlikely that the type of defendant with the means to pursue an appeal would be willing to accept the negative publicity that would result from advancing an argument in favor of facial race or gender discrimination.
Race and gender discounting acts to perpetuate racial disparities. The disparities that appear in actuary tables are the result of decades of socioeconomic discrimination faced by women and minorities.8 For example, in lead paint litigation, victims tend to live in low-income neighborhoods and are disproportionately Black and Hispanic children, and defendants pay far less than they would if their victims were white, middle-class children.9 Rather than reflecting the capacity of a race or gender group member to achieve a certain outcome, they reflect the past injustices that have limited the outcomes of those members up to the present.10 This injustice is even more apparent in cases involving children. If two otherwise identical children, one White and one Black, are irreparably harmed from lead poisoning, the Black child would be likely to receive a significantly lower damage award because he is statistically less likely to obtain a bachelor’s degree or live as long as the white child.11 Allowing these calculations to proceed on a regular basis fails to account for both the variety of life outcomes that are independent of race or gender and social progress that could possibly diminish the disparities these statistics reflect during a plaintiff’s lifetime.
Tort law targets three primary objectives: compensatory justice, corrective justice, and deterrence.12 Discounting damages based on race and gender minimizes the deterrent effect of tort liability upon the government and companies that operate in low-income and minority communities. Especially when considered in conjunction with insurance policies, race-based actuarial tables increase moral hazard because they increase the likelihood that corporations will engage in riskier behavior in communities of color because the costs are lower and therefore more appealing to insurance providers.13 By allowing these race-based classifications to proceed, the courts are effectively encouraging harm to proceed and creating a feedback loop between harm done to minority communities and lower damage awards based on lower life expectancy and educational outcomes.
A final issue that arises from the use of race tables in tort litigation is actually determining someone’s race. In McMillan v. City of New York, Judge Jack Weinstein found that question damning enough to bar the use of race in the first place.14 The claimant was made quadriplegic by the negligent crash of the Staten Island Ferry. The expert for the city used a race actuary table to discount McMillan’s damages.
On cross-examination, McMillan’s attorney asked a simple question: “How do you know McMillan is Black?” The expert was unable to provide an acceptable answer, and Judge Weinstein threw out consideration of McMillan’s race. The opinion provided a terse but simple explanation: “The question posed is whether such ‘racially’ based statistics and other compilations may be relied upon to find a shorter life expectancy for a person characterized as an ‘African-American,’ than for one in the general American population of mixed ‘ethnic’ and ‘racial’ backgrounds. The answer is ‘no.’”15
Other litigators have found success in raising this question to juries and some jurisdictions have acted to ban the use of race and gender tables.16 Notably, in 2019 California enacted a law that banned the calculation of damages based on race, ethnicity, and gender.17 Because this issue is largely confined to the district courts and unlikely to be appealed to the Supreme Court, it will be up to the Legislature to enact a ban statutorily. Ridding the courts of this practice will better serve the purposes of tort law by decreasing moral hazard and creating a more just compensation scheme that does not utilize past injustices to justify discounted awards today.
IAN MALLERY is a third-year law student at the University of Minnesota focusing on labor and civil rights law. He is a student director for the Clemency Project Clinic and a member of the executive board of the University of Minnesota National Lawyers Guild.
Notes
1 “All racial classification imposed by government must be analyzed by a reviewing court under strict scrutiny… such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
2 While some states have banned the practice legislatively, it remains in widespread use. Goran Dominioni, ARTICLE: Biased Damages Awards: Gender and Race Discrimination in Tort Trials, 1 Cardozo Int’l & Comp. L. Rev. 269, 271 (2018).
3 Forensic economists utilize life expectancy, work-life expectancy, and average wage tables compiled by the U.S. Department of Labor. Id.
4 A 2009 survey by the National Association of Forensic Economists showed that 44% considered race while 92% considered gender. Kim Soffen, In One Corner of the Law, Minorities and Women are Often Less Valued, The Washington Post (2016).
5 Jesse Schwab, ARTICLE: The Problem with Defining Tort Damages in Terms of Race and Gender, 2019 Harv. C.R.-C.L. L. Rev. Amicus 1, 2 (2019).
6 Martha Chamallas, SYMPOSIUM: Access to Justice: Can Business Co-Exist with the Civil Justice System?, Loy. L.A. L. Rev. 1435, 1439.
7 Bollinger, 539 U.S. 306, 326 (2003).
8 Schwab, supra at 3.
9 Chamallas, supra at 1440.
10 Id.
11 See e.g. G.M.M. v. Kimpson, 116 F. Supp. 3d 126, 140 (E.D.N.Y. 2015) (finding the use of race-based statistics to calculate a reduced life expectancy for tort damages unconstitutional).
12 Benjamin Shmueli, ARTICLE: Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice, 48 U. Mich. J.L. Reform 745, 747 (2015).
13 Dhruti J. Patel, NOTE: Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective on the Use of Race in Calculating Tort Damages, 53 U. Mich. J.L. Reform 227, 233 (2019).
14 253 F.R.D. 247, 248 (E.D.N.Y. 2008).
15 Id.
16 Chamallas, supra at 1443.
17 Schwab, supra at 1.