Karon Law Blog

Are Girls Worth Less Than Boys?

Posted December 05, 2016

By Jonathan Karon

Last October, I was alerted to an interesting news article by my friend, Dr. Maura Jane Farrelly of Brandeis University. The story from the October 25, 2016 issue of the Washington Post concerned whether personal injury law discriminates against women and minorities by valuing their injuries less than those sustained by white males. In particular, Dr. Farrelly, an Associate Professor of American Studies, was curious about my thoughts regarding a Georgia case mentioned in the story where all the expert witnesses agreed that the life of a six year old girl killed in an auto crash was worth less than the life of an unborn male fetus killed in the same crash. At the time I speculated that the difference might not be due to sexism, but instead to differences in the nature of the recovery allowed under Georgia tort law. As recovery for wrongful death is created in all states by statute, I thought it possible that recovery for the little girl’s death was limited to her economic value, whereas an award for the unborn child’s death might be based on the mother’s emotional distress from losing her baby. Thus, I reasoned, we might be comparing apples and oranges. But I’d always wanted to take a closer look at the actual case. Now, having cleared my trial calendar until 2017, I researched the case. Not only was I wrong, but what actually happened is far more interesting and lot more re-assuring.

The case was against the Federal government for the wrongful death of a six year old girl, Ashley Scott; a thirty three year old women, Debra Gordon; and her eight month old unborn male child, General Gordon. Because it was against the Federal government it was brought pursuant to a law known as the Federal Tort Claims Act. This is significant because it meant that the case was tried to a judge, without a jury, and that it was the judge who decided how much each life was worth.

The evidence was that six year old Ashley Scott was the child of unmarried parents who never lived together. Her mother was a college graduate who worked as an analyst for an insurance company and her father owned an excavation business. She was in the first grade and her teacher testified that she was both an exceptional student and person. She was voted “Student of the Month” the month before she died.

General Gordon’s mother Deborah, was an excellent student in High School and studied nursing for three years in college. She did not graduate, however, but began working for a grocery store where she was eventually promoted to produce manager. There was testimony from two supervisors that she was an exceptional employee. She was not married at the time of the crash and the identity of General’s father was unknown.

The case was tried in 1996 in the United States District Court for the Southern District of Georgia. Georgia law entitled the plaintiff to recover as damages “the full value of the life of the decedent” which included lost potential lifetime earnings.

Three economists testified: one hired on behalf of Ashley; one hired on behalf of General and his late mother; and one hired on behalf of the Federal government. All three relied heavily on government statistics showing that on average men worked longer and had higher starting salaries than women.

All three economists performed essentially the same type of calculation, which was to calculate the anticipated starting salary; multiply it by the anticipated number of years in the workforce and then multiply by anticipated annual growth in earnings and then discount that number to “present value” (intended to reflect the present cost of a future earnings stream).

All three economists relied on Work life estimates published by the U.S. Bureau of Labor Statistics to predict the number of years that Ashley or General would be expected to work. These tables, which are broken down by race and gender, provide statistical averages of the number of years someone in the respective categories is expected to work. Although they disagreed as to which exact set of statistics to use, all of them used statistical tables showing that women have a much lower anticipated work life. For example, the economist hired by Ashley’s family testified that she would have a work-life expectancy of 34.9 years, which assumed she would be out of the workforce for 8.1 years (presumably for child-rearing) and retire at age 65. The government’s economist, testifying for the defense, opined that she would only have a work life of 28.15 years, using a statistical table that he claimed reflected the average for African American women.

In contrast, the expert for General’s claim, using the same set of statistics, calculated an average work life of either 37.6 years or 38.3 years (37.6 being the average for males with an Associate’s degree and 38.3 being the average for males with a Bachelor’s degree). The government’s expert used the work life statistics for black males of all educational levels to claim that General’s work life would only be 35.22 years, which was still higher than Ashley’s expert had calculated for her.

The government’s expert also disregarded any specific evidence about Ashley or General’s expected career path and just used statistical averages of the starting salaries for all African American men and all African American women to calculate each of their expected starting salaries. That meant that he assumed a starting salary of $16,990 for General and only $13,202 for Ashley.

By filling in the other variables, Ashley’s expert concluded her lost income was $1,439,501.04 and General’s expert concluded his lost income was $1,724, 335 (assuming he obtained a Bachelor’s degree). The defendant government’s expert concluded that Ashley’s lost earnings only totaled $235,314 and General’s totaled $433,355.

So, all three economists testified that women are expected to earn less than men and one asked the Court to also find that women have lower starting salaries. This is where it gets interesting. The Judge disregarded the testimony of all three economists. He expressly rejected the sexism reflected in the opinions of the government’s expert, holding that the government’s expert:

“[A]rrives at figures that are not consistent with Ashley’s and General’s respective backgrounds. His projections of Ashley’s starting salary and expected worklife are significantly lower than his projections for General, even though Ashley’s short personal history clearly indicates that she had an aptitude for school and an ability to gain rapport with people. General, on the other hand, has no personal history and was to be raised in a single parent home, without knowing his father, by a mother who did not graduate from college.”

Contrary to what the Post story would have led us to believe, the Judge then found the full value of Ashley’s life to be $1,343,000 and the full value of General’s to be $1,083,000. So, at least in the Courtroom of the late Judge John F. Nangle, girls are not worth less than boys.

(Anyone who’d like to read Judge Nangle’s full opinion can find it at 923 F. Supp. 1570 (S.D. GA. 1996).

In an interesting post-script, the Washington Post reported last week that, based on its earlier article, a bipartisan group of legislators, including Sen. Cory Booker, Rep. Joe Kennedy, Sen. Kirsten Gillibrand and Rep. Mia Love are planning to introduce legislation prohibiting Federal Courts from issuing awards that consider the plaintiff’s race or gender.

Once again, my thanks to Dr. Farrelly for calling all this to my attention as I’m always looking for suggestions for interesting blog topics.