Personal Injury Damages Compensation: The Disparity Between Men and Women
We’ve all heard it before: Men get paid far more than women, even when they’re performing the same job duties and tasks. But you may (or may not) be surprised to learn that even when it comes to the legal sector and personal injury issues, the disparity is still pretty evident when it comes down to obtaining proper compensation for injuries and other harm.
Personal injury law, also known as tort law, allows a person who is injured due to the negligence or willful misconduct of another to file a lawsuit and obtain damages. There is a wide spectrum of issues for which personal injury claims can be made. These include:
Accidents (car, truck, motorcycle, etc.)
Intentional acts such as assault and battery
Defective products such as medical devices, pharmaceuticals, vehicle components and consumer products
Tort law is governed by state statutes and common law. The elements that must be proven in a personal injury or tort law matter are:
The defendant (the person who caused the harm) injured the plaintiff (the harmed individual)
In so doing, the defendant breached (i.e., failed to fulfill) a duty that was owed to the plaintiff
The plaintiff suffered damages
So what does that mean? By way of example, we know that people who get behind the wheel of a vehicle owe others the duty of operating that vehicle in a safe manner. If a driver fails to do so and an accident occurs, he or she can be held responsible for damages that the harmed individual endures. This is what must be proven in order for the harmed individual to obtain compensation for their damages.
In General, Men Get Higher Damage Compensation -- But Why?
Academics and jurists have long questioned the gender neutrality of damage compensation in personal injury cases. Men suffer more serious injuries and death due to riskier behavior, vehicle accidents and occupational hazards. These types of injuries are typically covered by current personal injury and tort law, as well as statutory compensation schemes such as motor vehicle insurance.
By contrast, women suffer more injuries in areas where damages are limited or where statutory compensation schemes do not apply. As a result, men typically receive higher compensation for their actual injuries. Similarly, the manner in which future lost income is calculated in the U.S. judicial system typically results in higher compensation for men who suffer damages for personal injuries.
More than 90% of personal injury claims in the United States result in settlements that are covered by confidential agreements, so it’s hard to know the exact extent to which gender can impact the settlement amounts and terms. Nonetheless, many academics and trial lawyers continue to be concerned that women receive less favorable treatment than men.
A survey by the National Association of Forensic Economics conducted in 2009 resulted in a finding that 92 percent of forensic economists surveyed considered gender when projecting the annual wage for an injured child. An often-referenced 1996 case that was heard in Federal court in the Southern District of Georgia involved a collision between a postal truck and a car that killed the car’s passengers – a 6-year-old girl and her godmother, a pregnant 33-year-old.
According to the Washington Post, the male fetus’ award was 84% higher than the 6-year-old girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That was the result despite testimony that the girl exhibited a level of intellectual ability and behavior that surpassed that of most other students -- and she already had a college fund. The male fetus’ mother had not completed college and the father was unknown, according to court records.
Attempts at Congressional Remedy
In December 2016, a bipartisan group of U.S. legislators tried to remedy the disparate compensation issue through the Fair Calculations in Civil Damages Act. This proposed legislation would have precluded federal courts from awarding damages based on gender, race, ethnicity, religion, or sexual orientation.
Although the legislation did not ultimately pass at the federal level in 2016 or when it was reintroduced in 2022, it embodied the notion that measuring a person’s potential by their gender (or color, religion or sexual orientation) is an institutional bias that creates systemic inequities that limit opportunities and creates compensation disparities. In the interim, some states, such as California, have introduced their own statues.
So, will this disparity ever change? One can only hope -- and to reach out to their representatives to stress the importance of remedying this issue.