Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Mr. BOOKER. Mr. President, I rise to introduce the Fair Calculations in Civil Damages Act of 2016, also known as the Fair Calculations Act.

This critical civil rights legislation would ensure that Federal judicial awards of civil damages do not value women and minorities less than other Americans. By combating discrimination in the award of civil damages, the Fair Calculations Act would help bring our nation one step closer to fulfilling the promise of equal justice under law. I thank Senator Gillibrand for her support, and I am proud she is an original cosponsor of this bill. I also thank Rep. Kennedy, who is introducing the House companion to this bill, for his leadership.

A basic tenet of the American legal system is our shared belief that ``all men are created equal,'' an idea so critical to who we are and what we believe that it is explicitly reflected in our Declaration of Independence. Even our national charter reflects the idea that everyone must be given equal protection under the laws. Out of this constitutional foundation lays a simple truth: to be equal under the law means, at a minimum, that neither our government nor the rule of the law should discriminate against anyone by virtue of his or her membership in a group.

Sadly, our Nation fails to live up to those promises when courts award damages in civil cases. Far too often, Federal and State judges use race or gender as factors to weigh when deciding how much money to award a plaintiff in a civil case. As a result, individuals of a certain race or gender often receive larger awards than people of a different race or gender, even in similar cases. This damages awards gap derives from estimates of how much money an individual would have earned over their lifetimes had they not been injured and, far too often, that estimate considers earnings and job levels by race and gender.

Consider the case of James McMillan, an African-American man who was injured during the 2003 Staten Island ferry crash. As a result of the crash, Mr. McMillan suffered a severe spinal cord injury that caused him to need medical care for the remainder of his life. He sued the City of New York. In response to his suit, the City of New York argued that he should receive less money for his injury because data demonstrated that African-American victims of spinal cord injuries lived fewer years than white victims and, therefore, he would incur fewer medical costs. Fortunately, the judge in that case rejected the city's argument. But no American should have to endure the indignity of having the value of their life determined by their race or gender.

The use of race and gender to project future earnings in courts is a widespread problem. According to a 2009 survey by the National Association of Forensic Economics, 44 percent of forensic economists reported considering race and 92 percent reported considering gender when estimating future earning rates for injured children.

Even leading scholars have been critical of this practice. Martha Chamallas, a law professor at the Ohio State University Law School, called the practice reminiscent of something ``civil rights advocates [fought] in the 1960s.'' Jennifer Wiggins, a law professor at the University of Maine Law School, has emphasized that the practice ``reinforces past discrimination and pushes it out into the future and endorses.'' I could not agree more.

The Fair Calculations Act, which I introduce today, would bar Federal courts from awarding damages based on race, ethnicity, gender, religion, or actual or perceived sexual orientation. Justice in an American court should not turn on race or gender, and the time has come to put an end to this discriminatory practice in Federal courts. I also believe this bill would serve as a road map for States who I hope will end this discriminatory practice in their courts.

The legislation would require the Department of Justice and the Department of Labor to develop guidance to the States on how calculations of future earnings for a violation of State tort law could violate Federal equal protection laws. That is yet another example of how this bill aims to persuade states to follow our lead. By issuing guidance to the states on this issue, the impact of this bill has the potential to be even more far-reaching.

The bill would require the Department of Labor to issue guidance to forensic economists on how to create inclusive future earnings tables that do not rely on race, ethnicity, gender, religion, or actual or perceived sexual orientation. Forensic economists are often used as experts in both Federal and State courts to advise lawyers and judges on the proper amounts to award for damages. Instructing these experts on the benefits of more representative future earnings tables and the legal hurdles of using less inclusive earning tables is yet another way to ensure that future earnings in State courts do not harm women or minorities.

Finally, the Fair Calculations Act would direct the Judicial Conference of the United States to conduct a study and report to Congress on the use of race, ethnicity, gender, age, disability, or actual or perceived sexual orientation in the calculation of future earnings in civil court cases. This provision provides for more transparency and record keeping. The first step to fixing a problem is understanding the extent of the problem you have, and this provision allows for Congress to track the extent of Federal judicial awards based on demographics. It also allows for more open government, which is important because transparency allows the American people to hold its government accountable.

Our Nation was founded on the idea that all people are created equal.

Valuing one person's life more than another merely because of the color of their skin or sex belies this core value that makes our Nation great. The Fair Calculations Act would remedy this wrong and continue our country down the path towards fulfilling our Nation's promise of liberty and justice for all. I am proud to stand here today and introduce this critical bill and I urge its speedy passage.

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