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House of Representatives
Session of 2019 - 2020 Regular Session


Posted: February 27, 2020 10:16 AM
From: Representative Joanna E. McClinton and Rep. Paul Schemel
To: All House members
Subject: Ensuring fairness in the calculation of damages
Right now, a person who suffers an injury, death, or damages to their property has a right to recover financial compensation from the responsible negligent party or parties. Unfortunately, the calculations used to determine the value of that compensation is currently reduced as a result of the injured persons race, ethnicity, or gender. This reduction violates the principals of equal protection and due process which are fundamental to our democracy and the concept of civil liberty.

With these facts in mind, Rep. Schemel and I will soon introduce legislation rectify this injustice and continue Pennsylvania’s path towards fairness and equality. Our legislation will prohibit the use of race, ethnicity, and gender when calculating damages.

Under our current system, these factors are routinely used in calculating damage awards – the financial compensation used to make a victim who after their injury by compensating them for lost wages, impaired earning capacity (“future wages”), etc. For example, since women in America earn lower wages, on average, than men, the damages awarded to women are substantially lower than those received by men. Nearly one-half of economists surveyed by the National Association of Forensic Economics said they consider race, and 92 percent consider gender, when projecting earning capacity for an injured person, including children. Impaired earning capacity can be a significant component of the damages awarded to a victim of negligence.

To calculate impaired earning capacity, court experts typically rely on the Bureau of Labor Statistics’ Current Population Survey. The results are a reflection of historical gender pay gaps and workforce discrimination, and the survey fails to account for possible progress or individual achievement. The consequence of this bias – to use averages that represent generations of discriminatory practices – is to perpetuate systemic inequalities that disproportionately injure women and minority individuals by depriving them of fair compensation. The use of race and gender-based tables can, by some estimates, under-value women and minorities by hundreds of thousands of dollars, including children who have not yet had the opportunity to work or identify career options. Specifically, these practices greatly disadvantage children of color.

Any generalized reduction of damages using statistical tables alone, based on a victim’s race, ethnicity, and gender is counter to the constitutional requirements of equal protection and due process.

Introduced as HB2726