How does a jury determine the financial amount a person should be awarded as “damages” in a lawsuit? The law explicitly uses race and gender to determine that amount: “how much would the person likely have earned over their lifetime, had not X, Y, or Z happened.” In a country such as the United States, that means without question that people of color and women will be awarded less than white males.
The debate over this use of demographic averages pits two tenets of the American justice system – fairness and accuracy – against each other.
Martha Chamallas, a law professor at Ohio State, called the practice reminiscent of “something Ruth Bader Ginsburg and civil rights advocates [fought] in the 1960s.” Jennifer Wriggins, a law professor at the University of Maine, said it “reinforces past discrimination and pushes it out into the future and endorses it.”
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston.
Law professors who study the practice in the United States say it deserves a fresh look, given America’s increasing awareness of the role race plays in the justice system – as well as the progress women have made in closing other economic disparities. Some other countries, including Canada and Israel, have moved away from using the averages in the name of equality. And the United States has banned the use of race and gender averages in some other calculations. The Affordable Care Act, for example, outlawed the practice of charging women more for health insurance than men.
“As you peel the onion of discrimination, you realize how embedded it is in our legal system and our society,” Michael Meyerson, a law professor at the University of Baltimore said.
The majority of personal injury cases are settled away from the public’s view. The Washington Post however, tells the story of “G.M.M.”, a four-year old boy who was exposed to lead paint throughout his New York City apartment. “G.M.M.” was:
“ ... mentally disabled, unable to speak in complete sentences and unable to play with other children because of his violent fits of hitting and biting.”
“The decision facing one Brooklyn jury last year was how much a landlord should pay in damages to the boy … after an investigation showed he had been living in an apartment illegally coated with lead paint. To determine that, the jury would have to decide how much more the boy would have earned over his lifetime without the injury.”
“Attorneys representing G.M.M. said $3.4 million was the right number, arguing that the boy would have had a bright career ahead of him; both of his parents had graduated from college and his mother received a master’s degree, according to the court documents. But the landlord’s defense put the figure at less than half that – $1.5 million. Attorney Roger Archibald noted that because the boy was Hispanic, G.M.M. was unlikely to attain the advanced education that would garner such a large income.”
““The [proportion] of Hispanics attaining master’s degrees was in the neighborhood of 7.37 percent,” Archibald told the court.”
The judge in G.M.M.’s case would not allow the defendant’s lawyers to bring up the issue of ethnicity, especially Hispanic, as it was deemed too broad a category. Unfortunately, the jury had already been given data that included ethnicity. They decided on an award of $2 million, which ultimately became $1.9 million.