WASHINGTON, DC –Today, U.S. Sens. Cory Booker (D-NJ) and Kirsten Gillibrand (D-NY), along with Rep. Joe Kennedy III (D-MA-4) and Mia Love (R-UT-4), introduced the Fair Calculations in Civil Damages Act of 2016 to address the widespread practice of using discriminatory tactics when calculating future earnings potential in personal injury cases and claims.

Sen. Booker said, “Our country was founded on the principle that all are created equal. Yet the way that damages are awarded in courts value certain lives more than others, often due to someone’s race or gender. That’s wrong, and it must change. This bill will serve as a needed step in righting some of the systemic inequalities that pervade too many facets of our justice system.”

Sen. Gillibrand said, “Under our current legal system, civil courts can award less money based on the fact alone that a victim is a woman or a minority. This is wrong. In this day and age the courts should not be allowed to say one life is worth more than another. This is one of the most damaging and offensive consequences of America’s pay inequality problem, and it should not be legal in this country. All lives should be valued equally, and it is outrageous that courts in the year 2016 are allowed to suggest otherwise. I will work with my colleagues from both parties to pass this bill and bring our civil courts into the 21st century.”

Rep. Kennedy said, “Measuring a person’s potential by their color, creed, gender or sexual orientation is the definition of institutional bias. Systemic inequities that limit opportunity, create pay gaps and impact everything from health care to education should not extend into our justice system. This bipartisan bill will work to end that practice, and I am proud to introduce it today with Senator Booker, Senator Gillibrand and Congresswoman Love."

Rep. Love said, “As a conservative, I believe the value of a life should not be either elevated or downgraded based on a person’s inherent characteristics, like race or gender. The courts should be above using race or gender in any way in determining awards in civil cases.  The Declaration of Independence reads: ‘We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’  In introducing this bill, I am doing what I swore to do, supporting and defending the Constitution and the principles enshrined in the Declaration of Independence of the United States.”         

Recent media reports and surveys have demonstrated the prevalence of lawyers and economists calculating damages awards and settlements based on the injured party’s race, ethnicity, or gender.  A Washington Post piece from October of 2016 reported on the case of a four-year-old boy whose family had sought $3.4 million in lost future earnings from their landlord after the boy had developed a mental disability from exposure to lead paint. During the case, the landlord’s lawyer alleged that because the boy was Hispanic, his earnings potential would be lower and argued for an award of $1.5 million instead. The presiding Judge, Judge Jack B. Weinstein ruled that it was unconstitutional to rely on ethnicity-based statistics to determine future income. Judge Weinstein emphasized that "propelling race and ethnicity to the forefront of predictions about an individual's future achievement ignores the myriad factors affecting an individual's capacity to fulfill his or her potential."

However, civil court decisions, forensic economists, and lawyers across the country often rely on statistics that correlate earnings with factors such as gender and race in order to generate what they deem as a reasonable value for an injured individual’s lost future earnings. According to a 2009 survey by the National Association of Forensic Economics, 44 percent of those responding reported they considered race and a whopping 92 percent considered gender when calculating potential lost earnings for injured children.

The Fair Calculations Act would begin to address these troubling trends by:

  • Precluding a court from awarding damages based on race, ethnicity, gender, religion, or actual or perceived sexual orientation;
  • Requiring the Department of Labor to issue guidance to forensic economists on how to create inclusive future earnings tables that do not rely on race, ethnicity, gender, religion, or actual or perceived sexual orientation;
  • Requiring the Department of Justice and the Department of Labor to develop guidance to states on how calculations of future earnings for a violation of state tort law could violate federal equal protection laws; and
  • Directing the Judicial Conference of the United States to conduct a study and report to Congress on the use of race, ethnicity, gender, age, disability, or actual or perceived sexual orientation in the calculation of future earnings in civil court cases.