That question often is asked during certain lawsuits when the parties are trying to determine how much should be paid in a settlement or judgment. Frequently, projections about potential future earnings are used to make the determination. There are pre-established tables to help with such calculations. That all seems fair — except when lawyers and their experts are allowed to deploy race and gender.
“If you utilize race and gender as subcategories, you are shorting women and people of color uniformly,” explained Robert Johnson, a California-based forensic economist who has traveled around the country serving as an expert on various lawsuits and helping calculate damages. He said he has never used subcategories, “but I’ve run into it all the time.”
It also happens in DC. However, Ward 8 DC Council member Trayon White recently introduced legislation to stop the discrimination.
The Stormiyah Denson-Jackson Race and Gender Economic Damages Equality Emergency Declaration Resolution of 2020 cites the need for DC to “prohibit the use of race, ethnicity, or gender to reduce estimations, measures, or calculations of lost earnings or impaired earning capacity in actions for personal injury or death caused by wrongful act, neglect, or default,” according to a draft copy of the legislation.
To illustrate how the practice often works, Johnson, a founding member of the National Association of Forensic Economists, told me a story from 25 or 30 years ago when he was just starting out. The case involved a West Virginia boy who had been profoundly injured. He was computing damages. “There were only five Black people in the entire courthouse — two parents, two lawyers and me.”
Johnson said he used the standard educational attainment table to determine the possible earnings for the injured child. The highest attainment and earnings on the table were those of a white male. He used them anyway. The opposing counsel questioned that methodology.
“The database all economists use is an education attainment table started in 1950, before Brown vs. Board of Education,” Johnson continued, outlining various advances and achievements African Americans had made since then. In other words, existing data were flawed.
“We set a new record. We got every penny asked for,” said Johnson. “I’ve been doing this all over the country, and nobody has ever said no.”
Unsurprisingly, race- and gender-based tables are common. The National Association of Forensic Economics conducted a survey of forensic economists in 2009 and found that 44% of respondents said they would account for race, and 92% said they would account for gender when projecting the future wages of an injured child.
Johnson said that when damages are calculated using the government educational attainment table, women consistently receive lower amounts than white males based on projected lifetime earnings. Specifically, Asian women get $1.8 million less, white women get $1.98 million less, and African American women receive $2.7 million less.
“They were effectively discriminated against at birth,” he continued, explaining that they cannot control race or gender.
Johnson said he spoke with White as the council member was considering his emergency bill. However, I could not reach White for a comment.
In the draft of the legislation, White alluded to racial issues that have made headlines across the country this year: the disproportionate number of people of color, particularly African Americans, who have died from COVID-19 during the current pandemic. He cites the “unfair and inequitable treatment of residents” as further motivation for the bill. He also raised in the declaration resolution the “untimely deaths” of George Floyd, Breonna Taylor and several other Black men and women at the hands of police.
“It is up to the government to act with urgency to ensure residents who are wrongfully killed or injured are not reduced in value due to race, ethnicity, or gender,” White wrote in his legislation. “It is a critical time in our history, and it is incumbent upon all of DC to ensure that the equity and inclusion that we demand in life is not [compromised] upon our death.”
The bill’s name refers to Stormiyah Denson-Jackson, a 12-year-old District resident who attended the SEED Public Charter School in Ward 7. She took her own life in January 2018, while she was in her dormitory. School officials knew Stormiyah was having suicidal thoughts. SEED’s psychologist Allison Hopkins allegedly determined that Stormiyah was a “low-level suicide threat.” No one told her mother about what was happening with her daughter, however. After being unable to secure details about what happened, a lawsuit was filed by William Lightfoot and LaRuby May of May Lightfoot, PLLC, on behalf of Stormiyah’s estate.
I have found it appalling that the council’s Committee on Education never called a public roundtable to examine exactly what went wrong and why apparently the SEED School was violating local laws, specifically the South Capitol Street Memorial Amendment Act of 2012 and the Youth Suicide Prevention and School Climate Survey Amendment Act of 2016. Both laws require officials to receive training to help identify children with behavioral or mental health needs.
The lawsuit has been met with resistance from all corners. As recently as last month members of the Public Charter School Board and its new executive director reportedly rebuffed an attempt by Stormiyah’s mother and her lawyers to meet with them.
“I recognize that this legislation is brought to our attention because of the tragic loss of Stormiyah’s life. But be clear, this is about economic equity for all black, brown and female residents of the District,” May, a former Ward 8 DC Council member, said in an email to me; the law firm appears to be consulting with Johnson.
“Stormiyah was a young activist in her community and the DC Council has an opportunity to allow Stormiyah’s legacy of fighting for her community to live through this legislation,” added May in her email to me.
The National Partnership for Women and Families (NPWF) has indicated that overall “women employed full time, year-round are typically paid 82 cents for every dollar paid to men.” That drops by 20 cents for Black women, who are “typically paid just 62 cents for every dollar paid to white, non-Hispanic men.”
“The wages of Black women are driven down by a number of current factors including gender and racial discrimination, workplace harassment, job segregation and a lack of workplace policies that support family caregiving, which is still most often performed by women,” according to the fact sheet published by NPWF.
DC is among the states with “the largest share of Black women working full-time, year- round.” Interestingly, according to NPWF, “Black women in the District of Columbia are paid 51 cents and black women in Mississippi are paid 56 cents for every dollar paid to white, non-Hispanic men.”
This doesn’t surprise Lightfoot, who sees White’s proposed legislation as a positive step.
“For decades women and people of color have been discriminated against since birth. Economists have been able to devalue a person’s potential based on the color of their skin and his or her gender,” Lightfoot said. “I’m hopeful that this systematic discrimination will finally come to an end with the passage of the Stormiyah Denson-Jackson Race and Gender Economic Damages Equality Act.”
If the council approves White’s bill, DC won’t be alone in taking action to reduce discrimination in this manner. California — the first to do so — voted last yar to put the brakes on race, gender and ethnic discrimination when calculating damages. Johnson spoke before the State Assembly and Senate. The votes were 78-0 and 39-0, respectively.
“Nobody would go on the record voting against it,” said Johnson.
Will DC legislators follow California’s good example?
This post first appeared on TheDCLIne.org