Bill to ban discrimination in civil damage awards advances in California legislature

How Much is a Brown Life Worth?

Is the life of a white person worth more than that of an African American or Latino? Does a male have more value in economic terms than a female?

In American courtrooms today, the answer to those questions is yes.

Today, when juries award damages to victims or their families to compensate them for being injured or killed, they routinely award women, African-Americans and Latinos smaller amounts of compensation than they do to white men, based on the notion that, as a group, people of color and women are likely to earn less money in their lifetime, to die younger, or both.

That’s right: The U.S. legal system deliberately and explicitly uses gender and race to set civil damages, enshrining racial and sexual discrimination into the practice of law. It’s been done this way for decades, but at least in California, the practice may be about to end.

Last month, the California Senate unanimously passed a bill, SB41, written by Senator Robert Herztberg and backed by the Silicon Valley Community Foundation, that bars judges and juries from reducing damages in personal injury or wrongful death actions based on the race, ethnicity, gender, religion, or sexual orientation of the victim. The bill is expected to pass the Assembly and be signed by Governor Newsom.

Here’s how this practice of legally enshrined discrimination can work.

Seven years ago, a pregnant woman – a costume designer with a master’s degree in fine arts – moved into a Brooklyn apartment with her college-educated husband. Three months later, she gave birth to a healthy boy. At his 1-year pediatric check-up, blood tests revealed he had greatly elevated levels of lead in his blood, and inspections showed the apartment was littered with lead dust and paint flakes.

The family moved out but the damage had been done. Two years later, neurological evaluations found the boy’s exposure to lead paint had caused brain damage that left him unable to speak in full sentences and prone to temper tantrums, hitting and biting. The mother sued, and experts testified at the trial that the boy’s problems were caused by his lead exposure. Then it was up to a jury to decide how much the landlord should pay to compensate the boy and his parents.

Attorneys for the family said the boy had a bright future because he came from a highly educated family and had many relatives with advanced college degrees. They said the landlord should pay $3.4 million in compensation. The landlord’s lawyers said that because he was Hispanic, and few Hispanics actually get advanced degrees, his future earning potential was limited. They proposed a payout of just $1.5 million.

Parties in these kinds of cases use experts called forensic economists to recommend to juries how to appraise the economic potential of the person injured or killed. These economists rely on actuarial tables that use race and gender to estimate the average life expectancy of people and add education level and family history to estimate lifetime earning potential.

The judge hearing the Brooklyn case, Jack Weinstein, expressed outrage at the use of race-based analysis for calculating a person’s value and barred any discussion of the boy’s ethnicity in court. But the jury was still left to evaluate dueling proposals from the two sides, both of which included ethnicity as a factor since they are baked in to the “life tables” used by forensic economists.

Such practices systematically “short-change” women and people of color, says Robert Johnson, a Stanford University-trained forensic economist who has been working in the field for three decades. He brought the issue to the attention of the Silicon Valley Community Foundation two years ago and SVCF decided to take it on.

“The inequity in courtrooms across the country was a clear discriminatory practice and we could not stand idly by,” says Gina Dalma, the SVCF’s senior vice president of public policy. “We believe the best use of philanthropic dollars is when we use them to shed light on the issue of inequity and support systemic solutions to end clear discriminatory practices.” 

SVCF asked the Lawyers’ Committee for Civil Right to investigate and the group produced a report, published in 2018, which found that while efforts to redress racial and gender discrimination have advanced in many areas – including criminal justice sentencing – race and gender bias remain deeply embedded in the awarding of civil damages.

Johnson and SVCF also worked with Senator Herzberg and his staff, and on April 30, Johnson testified in favor of SB41 before the Judiciary committee, offering several examples of how this bias can play out.

A 2011 case in San Luis Obispo involved a white girl who was profoundly injured. The economist reasoned that while the girl might have earned a college degree, she would still be likely to earn about 30 percent – or $900,000 – less than the almost $3 million a white male would be expected to make in his lifetime.

In a 2013 case in Fresno involving the wrongful death of Hispanic construction worker, the economist took the $1.8 million he projected a white construction worker would earn over the rest of his career and knocked off 40 percent, or $700,000.

Even people at the top of the education ladder can get short-changed by these practices, Johnson said. An African American woman who finishes medical school or law school would be expected – based on these widely-used tables -- to earn just under half of the $5.5 million a white male doctor or lawyer would earn over a lifetime.

Outrage at these practices has grown, stoked in part by Judge Weinstein’s ruling and by a 2016 Washington Post article looking at the history of race and gender bias in civil damage awards. Among the examples of bias it cited was a case where a 6-year old girl and a male fetus were killed in the same car crash.  The settlement for the fetus – killed along with its 33-year-old mother -- was up to 84 higher than the girl's, because of the expectation that the male would have greater future earning.

Shortly after the Post article, a bill was introduced in Congress to ban the practice in federal courts. It later died in committee. In California, we can change that. Senator Bill 41 has already passed the Senate and is expected to be passed by the Assembly in July and move to Governor Newsom's desk.