Breaking the CycleContemplating how we can show up for Black lives in our practice

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the December 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/december_2020

As I write this, we are just over two weeks out since a grand jury came back with the decision not to indict the police officers who killed Breonna Taylor. Like many others, I was not surprised by this decision. The message to Black women was clear—our lives do not matter. This was most powerfully expressed by Brittany Packnett Cunningham when she appeared on MSNBC.^[1]https://www.facebook.com/MsPackyetti/videos/396308054689369/. Black women’s contributions to this country have been devalued for over four hundred years. After Attorney General Daniel Cameron made his statement about the grand jury decision, I could not help but consider my role in all of this. We cannot talk about systemic racism without talking about our justice system, and systemic racism could not continue without the help of lawyers and judges. If we are being honest, our system was never meant to protect or honor Black lives as well. While I do not practice criminal law, our civil justice system is not immune to devaluing Black lives. As a Black woman and an attorney, the last year has forced me to consider how I am contributing to institutionalized racism and our justice system’s failure to address racial disparities in the law.

Our country is rife with systemic inequities that exist in health care, voting, housing, education, pay, environment, and wealth. This year has put these issues on full display as we see racial and ethnic minority groups at increased risk of getting sick and dying from COVID-19 due to lack of healthcare access, being disproportionately represented in “essential work settings,” and inequities in access to high-quality education, leading to lower paying and less stable jobs, and housing barriers.^[2] … Continue reading Many of these areas of systemic inequity are also areas where we, as plaintiffs’ attorneys, are blindly accepting that our Black clients’ damages are devalued due to these systems.

In calculating economic damages in our cases, forensic economists are reviewing life expectancies, work life, education attainment, average earnings, earnings growth, and consumption. Within each of these socioeconomic factors are embedded racial and gender disparities that are known. However, damages are calculated without any recognition of discrimination, the current racial and gender disparities, and without acknowledgment of the steps that are being taken to close the gaps in many of these areas.

For example, every April 10th, I see dozens of Equal Pay Day posts on my social media. Equal Pay Day is a symbolic date that represents how far into the new year the average (white) woman needs to work to make what her male counterpart did the year before. However, it isn’t the catch-up date for all women. Today, a white woman working full time earns 79 cents on the dollar compared to men; Asian women earn 87 cents; Native American women are at 60 cents; Black women earn 63 cents; and Latinas earn 55 cents compared to the earnings of white men.^[3] … Continue reading I am sure most of us remember the first piece of legislation that President Barack Obama signed as President was the Lilly Ledbetter Fair Pay Act, which made it easier for employees to challenge unfair pay practices. Since then, the wage gap has only marginally closed for some groups of women.^[4]https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2015/08/lilly_ledbetter_fair_pay_act_of_2009_01.07.2013.pdf. Some studies show that Black women are the most educated group in the workforce,^[5]https://nces.ed.gov/fastfacts/display.asp?id=72 but why is that not showing up in the wage data? In cases where our client or the decedent has earnings history to rely on, I am not sure how we can calculate future lost earnings and lost earning capacity without having absorbed gender and race-based gaps.

All of this pay disparity adds up. Black women are at risk of losing $941,600 in wages over a 40-year career due to the pay gap; Native American women and Latinas are at risk of losing over $1 million.^[6]https://www.cnbc.com/2020/09/18/new-census-data-reveals-no-progress-has-been-made-closing-the-gender-pay-gap.html#:∼:text=New%20data%20released%20by%20the,every%20dollar%20earned%20by%20men. Today, we see women of all races leaving the workforce as COVID-19 has left families under pressure to school children at home. In many cases, women are leaving because they are the lower wage earner of a two-parent household.^[7]https://www.nytimes.com/2020/10/03/us/jobs-women-dropping-out-workforce-wage-gap-gender.html. How will this further affect the calculation of damages for women in the future?

Calculations of future lost earnings for children reflects the most discriminatory impact because children do not have actual earnings data for forensic economists to rely on. Without earnings data, economists look to the earnings by education tables from the Bureau of Labor Statistics, which are based on historical data. Some experts will rely on the population average,^[8]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-over-time-total-men-women.htm some rely on the specific demographics (race and gender) of the plaintiff or decedent,^[9]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-current-quarter-by-race-and-sex.htm and some will rely on the white male’s earnings. Reliance on race, ethnicity, and/or gender-specific tables preserve systemic and structural inequities in our society. Without challenging the status quo, we are reinforcing wage gaps and workforce discrimination.

In G.M.M. v. Kimpson, the court was tasked with deciding whether statistics based on the ethnicity of a child could be relied upon to find a reduced likelihood of his obtaining higher education. 116 F.Supp.3d 126 (E.D.N.Y. 2015). The defense argued that damages should be reduced because the child’s Hispanic ethnicity meant that he was statistically unlikely to obtain a college or graduate degree. The child’s father held a baccalaureate degree, the mother had a master’s degree in Fine Arts. Both parents were employed and the family was stable. Prior to the child’s injury, the court found that there was a high probability of superior educational attainment and corresponding earnings. The court held that the use of race^[10]In McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), the court held that statistical evidence used to prove that a spinal cord-injured “African American” was likely to survive … Continue reading and ethnicity-based statistics to obtain a reduced damage award is unconstitutional: violating due process because it creates arbitrary and irrational state action, and equal protection because it subjects claimant to a disadvantageous estimate of damages solely on the basis of ethnic classification. Id. at 152. Judge Weinstein further explained,

Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American dream, denigrating minorities’ chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriers that our society strives to abolish.

Id.

Outside of the handful of decisions on this subject, it appears that the status quo is to utilize tables that reduce damages based on our clients’ race, ethnicity, and gender. We cannot continue to use these metrics when there is so much disparity built in. Do we need to fully dismantle our system? Are reforms going to be sufficient? Last year, California passed S.B. 41 which expressly prohibits reductions of damages for lost future earnings in personal injury and wrongful death cases when those reductions are based on race, gender or ethnicity. Parties can no longer rely on life and wage expectancy tables that are race or gender based.^[11] … Continue reading Indeed, last year, several prominent groups including the American Association for Justice, American Civil Liberties Union, and NAACP Legal Defense and Education Fund signed onto a letter asking the National Association of Forensic Economists to discontinue use of damages tables that discriminate against women and people of color.^[12]http://justicecatalyst.org/wp-content/uploads/2019/04/2019.04.26-Letter-to-NAFE.pdf.

In July, Washington D.C. Councilmember Trayon White proposed the Stormiyah Denson-Jackson Race and Gender Damages Temporary Amendment of 2020.^[13]https://www.dccouncil.us/legislative-requests-for-july-21-2020-legislative-meeting/stormiyah-denson-jackson-race-and-gender-economic-damages-temporary-amendment-act-of-2020-signature-07062020/. The emergency legislation sought to prohibit the use of race, ethnicity, or gender to reduce estimations, measures, or calculations of lost earnings or impaired earning capacity in personal injury and wrongful death actions. The bill does not appear to have passed.

I suspect that it is not only the economic damages that are decreased due to the race or ethnicity of our clients. Introspection is warranted. We operate on contingency fee basis and in valuing cases, some attorneys may not pursue cases where the damages award will not be high enough to make litigation worthwhile. We will want to keep an eye on the courts’ application of California’s S.B. 41 and look at our own legislative agenda for fixes. Talk to your experts about what assumptions and data they are using for the damages calculations in your cases. For defendants’ experts who are relying on this data, question them on it. Racial, ethnic, and gender disparities in the United States are undeniable, but let them try to deny the inequities. Finally, we should be reviewing our own firms’ wages to determine whether the women or minorities are being paid less than their white or male counterparts for the same work. Let us not be part of the problem.

In reviewing all of this, I come back to the family of Breonna Taylor. Her family settled their wrongful death lawsuit with the city of Louisville, Kentucky for $12 million in addition to a commitment from the city to institute several reforms to policing practices.^[14]https://www.nytimes.com/2020/09/15/us/breonna-taylor-settlement-louisville.html. This is by no means a criticism of the settlement, because it is a good outcome for the family and for Louisville. However, I couldn’t help but compare it to the 2019 $20 million settlement between Justine Ruszczyk’s family and the City of Minneapolis. Ms. Ruszczyk, a white woman, was shot and killed by a Minneapolis police officer after she called 9-1-1 to report a possible assault of a woman in an alley behind her house. In that case, the police officer was a Somali-American Black man. I wonder how the damages were assessed in these seemingly similar cases with reversed racial roles. And, even if the disparate amounts are justified, you can imagine how it looks to the public at large.

You may disagree with me. However, we are perpetuating systemic racism when we rely on data that reflects the discriminatory aspects of our society. To put it another way, our white male clients and their families are in a more privileged position when calculating economic damages. I am not someone who can just ignore that, and I don’t think WSAJ and its members should either.

Rachel Luke, EAGLE member, is an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in personal injury, product liability, and insurance bad faith cases. She is currently the Diversity Committee co-chair for WSAJ.