A bipartisan group of lawmakers is planning to introduce a bill on Thursday seeking to limit the consideration of a victim’s race and gender in determining their compensation in civil suits.
The bill, called the Fair Calculations Act, comes after an October report in The Washington Post, as well as academic work, that found rampant use of racial and gender income averages in determining these damages. As a result, women and minorities could receive significantly less compensation than white men in similar cases.
Sen. Cory Booker (D-N.J.), who is sponsoring the Senate bill alongside Sen. Kirsten Gillibrand (D-N.Y.), views it as an issue of civil rights. “We have baked into our system something that is so, almost astonishingly, unjust — it’s unacceptable to me,” he said in an interview. Gillibrand, in an emailed statement, agreed: “In this day and age, the courts should not be allowed to say one life is worth more than another.”
Rep. Joe Kennedy (D-Mass.), who is sponsoring the House bill with Rep. Mia Love (R-Utah), also cited concerns about the financial impact. By using these demographic averages, he said in an interview, “We are continuing the proliferation of systemic economic injustice that has existed in our country for quite a long time.”
But the bill is not without its critics. Lawrence Spizman, the president of the National Association of Forensic Economics, a group of experts who make these compensation calculations, says the bill’s introduction is purely political. “Race, gender, religion, sexual orientation are the buzzwords of liberal politicians,” he said.
Though he doesn’t expect the bill to pass, if it does, he expects there to be unintended consequences. “If females and minorities get the same, who’s going to pay for that? Insurance companies,” he said. Since insurance companies tend to foot the bill for large damages awards, he argues, those increased costs would be passed onto the companies and individuals buying the insurance.
Should it become law, the bill would prohibit federal courts from issuing awards that consider the victim’s race or gender, among other demographic variables. It would also direct the Justice Department and the Labor Department to make similar, though nonbinding, guidelines for state courts and forensic economists — advising them the current practice may violate federal equal protection laws, among other things. Issuing guidelines like these is a common tactic used by the executive branch to influence state law.
However, Booker and Kennedy, alongside academics, expect state courts and private settlements, which comprise the vast majority of these cases, to follow suit. Martha Chamallas, a law professor at Ohio State, said it is common for “federal courts [to] be a model [for] state courts.”
And further, Chamallas says, the law affecting court practices “changes the dynamics of settlements.” That is, if a female or minority defendant knows he or she could receive more in court with a demographic-neutral calculation, a discriminatory private settlement would be rejected.
The bill’s prospects of passing remain unclear, as it will probably find stronger support among Democrats yet faces a Republican-held Congress. But the bill’s sponsors are optimistic, especially in light of Republican Love’s co-sponsorship.
“There’s a certain fairness tenet that Americans hold regardless of what party they’re in,” Booker said. And Love’s co-sponsorship “shows this is something where Democrats and Republicans can come together.”
The bill will probably be referred to the Senate and House Judiciary Committees after its introduction.