Bill that would bar racial, gender considerations from damage awards moves forward in Legislature

Do courts consider the lives of women and people of color to be worth less than those of white men? If so, does this bias violate the Equal Protection clause of the U.S. Constitution?

Those are among the provocative questions behind a new bill that would prohibit "consideration of a plaintiff's race, ethnicity, gender, religion or sexual orientation in the calculation of monetary damage awards in state tort actions." SB 41 passed the Senate Judiciary Committee on Tuesday.

Bill author Sen. Robert Hertzberg, D-Van Nuys, told the committee of a recent case in Brooklyn, where parents sued a landlord after their son suffered severe lead exposure. The defense argued the boy's injuries were worth only $1.5 million, less than half of the $3.4 million in lost lifetime earnings proposed by the plaintiffs, "because the boy was Latino" and "unlikely to attain an advanced education."

"This is just one of many, many cases that we've seen across the country," Hertzberg said. "Because historically-marginalized groups like African-Americans, Latinos and women in the United States earn less on average than their white and male counterparts, the damages they receive can be substantially lower. The practice is unconscionable."

No one spoke against the bill during the committee hearing. The Civil Justice Association of California sent an opposition letter to the committee, arguing the proposed law could hurt women by preventing their average longer life expectancy from being considered.

"There are routine and perfectly appropriate circumstances where these prohibited factors may be used in calculating damages," the letter stated.

Lost earnings potential in a wrongful injury or death case is usually determined at least in part by the Bureau of Labor Statistics Current Population Survey. Because these statistics consider race and gender, Hertzberg said, they end up perpetuating disparities and assign more value to some lives than others.

Hertzberg also argued the difference in damages provides an incentive for companies to locate dangerous facilities in minority-dominated areas to lower their potential liability.

Robert W. Johnson, a Los Altos-based forensic economist who has testified in cases throughout California and other states, testified defense counsel routinely argue for a 30% to 40% reduction in damages based on future earnings if the victim is a woman or racial minority -- disparities he said would be illegal if used in hiring.

Hertzberg agreed to amendments proposed by the Consumer Attorneys of California to add more specific language stating "calculations of past, present, or future personal injury or wrongful death damages shall not be reduced based on race, ethnicity, gender, religion, or sexual orientation."

The bill is also supported by the California Association of Black Lawyers and the California Employment Lawyers Association, among others.

According to Hertzberg's office, no other state has such a law. In fact, according to a committee analysis, no bill with this effect has ever been introduced in the California Legislature.

But many civil attorneys are aware such disparities exist. A 2018 report from the Lawyers Committee for Civil Rights Under Law found 92% of economists considered gender in determining an individual's potential future earnings, and nearly 44% considered race.

The report also found several states use tools such as jury instructions to try to edit race and gender out of damages considerations without banning the consideration of these factors outright.

The Judiciary Committee analysis noted Jack B. Weinstein, a senior federal Judge in the Eastern District of New York, has rejected the use of Bureau statistics in wrongful death awards though other courts have generally declined to follow his example. McMillan v. City of New York, 253 FRD 247 (E.D. N.Y. 2008).