"Right now, when we use gender and race-based tables, we are basically using tables that have taken a snapshot of reality which is based on past discrimination. And when we use them to provide tort victims compensation for future loss of income, we're perpetuating past discrimination into the future. If we stop doing that, we can disconnect the discriminatory past from the egalitarian future," said Ronen Avraham, who teaches at the University of Texas School of Law.

Some forensic economists defend the use of race and gender in calculating tort damages, calling it more precise.

"Economists generally like to use figures for damages that are as specific to the person as are available," said Stan Smith, a Chicago forensic economist. "I don't know that this needs to be adjusted. It just makes things a little more fuzzy," he said.

The tables at the center of the controversy are prepared by the U.S. Department of Labor and are updated quarterly. Race- and gender-based damage awards persist because they are bound up in centuries-old thinking about tort law, Avraham said.

Drake Bearden Jr. of Costello & Mains. Courtesy photo

"It's very hard to think about traditional tort law differently. We're used to thinking equality should be part of the public law but we're not thinking about equality being an integral part of private law, private law being contracts, torts, property. It's just very foreign to the traditional, centuries-old way of thinking," Avraham said.

Some observers have been talking for years about the use of damage estimates based on race and gender.

For instance, Martha Chamallas, a professor at the Ohio State University Moritz College of Law, was among the first to write about racial and gender disparities in the calculation of tort damages. Chamallas said she has addressed groups of personal injury lawyers, who regularly use forensic economists to help set damages in tort cases, and found they are unaware that economists' reports may factor in race and gender.

"Part of that is uncritical acceptance of that expert witness' methodology," said Chamallas. In addition, personal injury lawyers are not attuned to civil rights issues or constitutional principles, she said. "The bars are segmented in that there are civil rights attorneys and then there are personal injury attorneys. And so civil rights attorneys, when they realize race and gender are being used to determine the value of an injury, are primed to say this isn't right, whereas personal injury attorneys are not."

Jimmy Chong of the Chong Law Firm in Delaware. Courtesy photo

In 2015, the late U.S. District Judge Jack Weinstein of the Eastern District of New York declared the use of ethnicity in computing tort damages unconstitutional. Weinstein made that finding in a suit against a landlord on behalf of a child who developed severe neurological and behavioral issues from inhaling lead paint dust in the family's Brooklyn apartment.

During trial, a key question was what level of education the boy would have attained if he had not been poisoned by lead, as a component of future lost earnings.

An expert for the defendant landlord opined that because the child's parents were both Hispanic, he was unlikely to obtain a college degree. The child's mother had a master's degree in fine arts and his father had a bachelor's degree.

An economics expert for the plaintiff, who did not consider the child's ethnicity, put total future economic losses at $2.5 million to $4 million. The expert for the defendant, who factored in the child's Hispanic heritage, estimated future economic losses at $1.5 million to $2.5 million. The jury ultimately awarded plaintiffs $2,005,000.

"It is unconstitutional in a tort trial to premise projected societal and educational achievements on race or ethnicity to reduce tort damages," Weinstein wrote.

Some lawmakers have taken note of the controversy over race-based tort damages. In February a bill was introduced in the U.S. House of Representatives that would bar the award of damages in a civil action using a calculation based on race, ethnicity, gender, religion or sexual orientation. But similar bills have been introduced in prior sessions of Congress and have not advanced.

Martha Chamallas, a professor with the Ohio State University Moritz College of Law. Courtesy photo

The American Association for Justice, an advocacy group for plaintiffs lawyers, has endorsed the latest House bill on the issue.

"Justice should mean the same thing for every American. That's why we need to make big, systemic changes to the way civil damages are determined in this country, to recognize the value of every life and to end the implementation of discriminatory calculations," said Sue Steinman, senior director of policy and senior counsel for the AAJ.

The subject has also had some success on the state level.

In New Jersey a new law went into effect in January to bar the use of race, ethnicity, gender, gender identity and sexual orientation in computing damages.

Oregon adopted a similar law in 2018 and California did so in 2019.

Drake Bearden Jr., who handles employment and civil rights cases at Costello & Mains in Mount Laurel, New Jersey, has followed the New Jersey legislation, whose passage he welcomes.

"Someone shouldn't have less of an earning capacity for the rest of their life because of the color of their skin or because of their nationality or because they're a woman," Bearden said.

Bearden likened the question of making race and gender factors in setting damages to the issue of asking job applicants how much they earned on their previous job, another practice that was recently outlawed in New Jersey.

Jimmy Chong, a personal injury lawyer in Wilmington, Delaware, said he favors eliminating race and gender in calculating damages. He said that most of his clients are minorities who would stand to benefit from such a change. However, if he felt a client would benefit from a damages report that factored in race and gender, he wouldn't hesitate to use it, Chong said.

"If I had a choice, I would always go with 'let's not use race or sex to judge anyone.' However, if I'm representing a client where using that would benefit the client, it would be my ethical duty to do what I can to benefit my client. Because that is a tool that we are allowed to use," Chong said.

Chamallas of Ohio State challenges the economists' claims that using race and gender in setting damages is more accurate.

"To say it's accurate to use gender and race just doesn't begin to tell you how complex these assessments are. There are other demographic measures of a person, like their religion. On average, Baptists make less than Catholics, but we don't say let's use religion as a proxy for determining how much someone will make in the future. It's because people uncritically think that race has something to do with biology or something inherent about people, whereas, when you say Catholics make more than Baptists, they say that's a correlation," Chamallas said.

Chamallas is frustrated that use of race and gender in estimating damages has been slow to gain traction. But she notes that judges rarely write opinions on the issue, since most personal injury litigation ends in a settlement. And damages issues are rarely discussed in law school, she said.

"It's hard to have a discussion about this because it involves race and gender and people don't want to talk about it and it's very polarizing," she said. "But also because you have to know a fair amount about past practices and law to engage. In some ways it's a technical issue."