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Chamallas plays key role in Fair Calculations in Civil Damages Act

December 9, 2016 | Faculty

Just days after Professor Martha Chamallas was quoted in an October article in The Washington Post detailing how women and minorities are often awarded considerably less compensation in civil suits, she received phone calls from the offices of Sen. Corey Booker (D-NJ) and Sen. Kirsten Gillibrand (D-NY). They sought her legal expertise.

The resulting Fair Calculations in Civil Damages Act of 2016, introduced earlier this month, aims to curtail the use of race and gender-based statistical averages to determine compensation in civil suits. The bill, which has bipartisan support, is co-sponsored by Sen. Booker and Sen. Gillibrand, as well as Rep. Joe Kennedy (D-Mass) and Rep. Mia Love (R-Utah). Chamallas, a leading scholar on tort and constitutional and employment discrimination law, provided her expertise on certain aspects of the proposed legislation.

Forensic experts frequently use gender and race-based tables to predict how much money victims would have earned over their lifetime had they not been injured. When these projections rely on gender and race–based demographic averages (such as average earnings for women and men), white male victims typically receive higher compensation than women of all races and minority men. “In one case, when a 6-year-old girl and a male fetus were killed in the same car crash, the settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records,” The Washington Post’s reports.

If passed, the Fair Calculations Act would prohibit federal courts from awarding damages based on race, ethnicity, gender, religion or sexual orientation. To Chamallas’ knowledge, courts have not relied on either religion or sexual orientation to determine damages. Including religion and sexual orientation in the bill, however, highlights the unfairness of using race and gender-based tables, she said.

“In my scholarship, I have argued that courts would never say that because Baptists tend to make less money than Catholics, their damage awards should be lower.” Chamallas said. “Why then are we looking at somebody’s race and gender? This is an instance where we should take a page from constitutional and civil rights law to reform an inequitable practice in civil cases.”

Chamallas started studying gender and race-based tables in the 1990s, after serving on a task force that examined race and gender bias in Iowa courts. She was shocked to learn from lawyers on the task force that calculating damages based on race and gender was common practice throughout the legal system. Until recently, the issue has remained hidden in plain sight, she said, as a vast number of cases are settled before suit is filed.

According to a 2009 survey by the National Association of Forensic Economics, roughly 44 percent of responders noted that they considered race when determining potential lost earnings for injured children. An additional 92 percent reported that they took gender into account.

“The use of gender and race-based tables sends the message that as a society we expect less and we will give less to certain groups of people. It perpetuates the kind of thinking that may make an employer decide to give a smaller raise to a woman,” Chamallas said. “It’s like having two children and saying, ‘I expect a lot from the boy but not as much from the girl.”

In addition to outlawing the practice in federal courts, the proposed legislation would require the Secretary of Labor to issue guidance to forensic economists  to develop inclusive future earnings tables that do not rely on race or gender. The bill also provides for the issuance of guidance to state courts to enable them to devise methods to make damage calculations free of bias.

Regardless of the prospects for passage, the Fair Calculations Act will play an important role in bringing the issue to light.

“It’s another step to make this issue more visible and generate a thoughtful consideration of the problem,” Chamallas said. “This is an instance where there is much common ground.  Women of all races and minority men stand to receive more in damages, and more importantly, a fair measure of damages.”