Generally, facial race classifications in the American legal system are exceedingly rare, and almost any attempt to differentiate litigants’ outcomes based solely on their race is met with the highest level of judicial scrutiny. But there is one area of the law where the use of a party’s race and sex classifications is not only permitted, but routine: personal injury. It is now common practice for defendants to use national race and sex statistics to reduce the damages awards of female and BIPOC plaintiffs.
Take, for example, the class litigation filed against the NFL by former players seeking compensation for the devastating neurocognitive impairment they currently suffer from playing in the league. In 2013, the NFL reached a settlement with the class and created a $765 million settlement fund from which class members would be compensated.[1] Over time, that settlement fund rose to $1 billion.[2] As with any class settlement fund, purported class members would have to demonstrate their harm and damages to receive a standardized payout. On its face, such a requirement makes sense; the fundamental aim of personal injury law is to make a plaintiff whole (or as close as reasonably possible) through financial compensation while also avoiding over-compensating plaintiffs with an unearned windfall.
But in 2019, two former NFL players filed a civil rights lawsuit regarding the settlement agreement because the testing scheme used to determine a claimant’s eligibility for compensation employed a practice known as “race-norming.” To receive a payout, former players had their current neurocognitive ability measured and then compared it against a hypothetical baseline representing what that ability would have been absent head injuries. If the deficit between their current measurement and their baseline was of a certain threshold, the player would receive a payout. However, the NFL used “race-norming” to set the hypothetical baseline of Black players lower than white players. Lowering Black players’ baseline had significant impact on those players’ ability to receive compensation, even where their current neurocognitive ability was functionally identical to white players who did receive a payout. In 2021, the NFL agreed to end the process.[3]
This scenario may sound fundamentally unjust and prejudiced, but it plays out regularly in the field of personal injury law. To be sure, measuring forward-looking damages like medical expenses for the rest of a plaintiff’s life or the lost economic opportunities and wages of a plaintiff who can no longer work is inherently imprecise. It’s impossible to determine what the future would have held for a plaintiff had they not been injured. So, it’s sensible to use national statistics from sources like the Census Bureau, Bureau of Labor Statistics, etc., to come up with a reasonable estimation of a given plaintiff’s educational and economic future to determine the opportunities lost from a defendant’s actions.
These government statistics are all differentiated based on race under the ostensible purpose of identifying race and sex disparities in society. The government should be checking to see if there are wage gaps amongst different races and genders, or if there are significant disparities in the life of expectancies of different racial groups. The existence of any such disparities can help identify race and sex discrimination in society, which the government is supposed to address and correct.
But these same statistics are used in courtrooms to argue that, in the interest of fairness, a Black male plaintiff is statistically likely to die at an earlier age than any other racial group and his damages for life-long medical care should be reduced accordingly. Or, if the plaintiff is a woman, then, statistics, which indicate that women are paid less than men, should be taken into account when estimating her lost wages to reduce her damages accordingly.
There is no clear solution to this problematic practice. Defendants will argue that fundamental fairness demands that a plaintiff’s damages should replicate the most realistic estimation of their future, including the likelihood of reduced earnings or educational levels. Plaintiffs will argue that the practice inherently incorporates systemic discrimination and its resulting harm in violation of constitutional norms which generally prohibit facial race classifications.[4] Plaintiffs will also point to the inherent analytical problems of using race and gender to predict life expectancy and career earnings; what aspect of “blackness” causes the Black life expectancy to be lower? What is the actual casual link between identifying as a woman and earning statistically lower wages?[5] These are unanswerable questions that border on the absurd, but by using race- and gender-normed statistics, and their demonstration of depressed outcomes for people of color and women, to reduce damages awards, courts functionally agree that these groups are simply “worth” less than others.[6]
The good news is that the NFL settlement lawsuit piqued the interest of Congress.[7] Hopefully, Congress will take legislative action and forbid tort defendants from engaging in precisely the kind of facial race and sex classifications which violates the “colorblind” ethic of American law. But, in the meantime, the tort plaintiff’s bar would do well to remain vigilant when their opponents try to institute this practice. The constitutional and moral argument is on the plaintiff’s side. What’s more, it would be exceedingly difficult – and raise plenty of eyebrows – for any defendant to defend this practice in open court. So, unless and until legislative action is taken to end the practice, let’s make those who wish to engage in this reprehensible practice defend it openly and for all to see.
[1] N.F.L. Agrees to Settle Concussion Suit for $765 Million – The New York Times (nytimes.com)
[2] Billion-dollar NFL concussion settlement turns nasty as lawyers, others vie for pieces of payouts to players – ESPN
[3] NFL agrees to end race-based brain testing in $1B settlement on concussions : NPR
[4] Congress Looks Into Bias Claims in N.F.L. Concussion Settlement – The New York Times (nytimes.com)
[5]U.S. District Court Judge Jack Weinstein denied defendant’s attempt to reduce a Black male plaintiff’s damages and called out this analytical problem in McMillan v. City of New York, 253 F.R.D. 247, 248 (E.D.N.Y. 2008).
[6] See G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F. Supp. 3d 126, 135 (E.D.N.Y. 2015) for a robust recitation of the case against this practice.
[7] Congress Looks Into Bias Claims in N.F.L. Concussion Settlement – The New York Times (nytimes.com)
