Race, Gender and Injury Settlements… Oh My.
Recently the Washington Post published an article that takes personal injury law, and puts it under a microscope. It takes a look at a handful of cases and takes into account researched statistics to discuss how the legal system uses race and gender to determine how much compensation victims or their families should receive when they are injured or killed.
How Race and Gender Affects Personal Injury Cases
In one case, the defense attorney argued that a 4-year-old boy with a mental disability attributed to illegal lead paint in his apartment should recieve less damages than presented by the plaintiff attorney because the boy is hispanic. The attorney argues that the boy was unlikely to get an advanced degree that would garner him a large income. He told the court, “the proportion of Hispanics attaining master’s degrees was in the neighborhood of 7.37%.” When this was brought up, the judge did not allow him to continue on the basis of race, however the jury still has access to calculations of damages that included ethnicity as an element. At the end the landlord was found liable, the case ended up settling for just a little more than half of what the boy’s attorney originally argued for.
What the Statistics Show
According to several lawyers, forensic economists and other experts, it was found that white and male victims usually recieve larger settlements than people of color and women who have similar cases. This is mostly due to the future earning capacity estimates had they not been injured. These estimates” take into account average earnings and employment levels by both race and gender.” Mind you this is in a world where women are still paid less than man for the same jobs.
According to the Census Bureau and Krueger and Slesnick, the future lost income for a black male with a master’s degree is $2.12 million, while a white male with a only a bachelor’s degree is valued at $2.28 million. If under 25, you can calculate your own own future lost income amount compared to a white male by using the tool shown in the Washington Post article.
In another case, a 6-year-old girl and a male fetus were killed in the same car crash. The male fetus’ settlement was found to be 84% higher than the girl’s.
What Experts Think
According to the article, the debate of using these demographic averages pits fairness and accuracy against each other, but has been discussed little in legal analyses. Those defending the practice say that it is the most accurate why to make calculations about losses of those injured. 44% of those surveyed in 2009 by the National Association of Forensic Economics said that they considered race when estimating the annual wage for an injured child. 92% consider gender. People against using these demographic averages say that it reinforces discrimination. The use of demographics related to race and gender have been banned in the US for other calculations such as The Affordable Care Act.
The September 11th Victim Compensation Fund, which gave money to injured and families of victims originally used race and gender-based formulas. The National Organization for Women Legal Defense and Education Fund wrote in a letter to the justice department that, “This practice, we believe, threatens the constitutional rights of women and minorities, spinning into the future a history of state and private discrimination against these groups.” Responsively, the fund changed to using race-neutral male formulas to assess the damages.
At the end of the 4-year-old boy’s case, in the judge’s opinion writing, it was said, “Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American Dream,” he wrote. “A traditional, automatic, unthinking approach by experts in the field can no longer be tolerated.”
Source: Washington Post