Despite significant legislation prohibiting discrimination in employment practices, the use of race-based data to predict future earnings continues to be utilized across most of the United States. A series of employment-related tables, such as those published by the Bureau of Labor Statistics (2024), identify earnings and employment trends broken down by a variety of demographic variables including race. Economic and vocational experts may use data from these or an assortment of other sources (Krueger & Slesnick, 2014) to identify future earning capacity based on racial background. Unfortunately, the use of these tables can serve to restrict an individuals’ true earning potential in favor of the average of all individuals from similar racial backgrounds who may have sustained their own discrimination in the workplace.
In tort litigation, courts may turn to these experts to assess a plaintiff’s loss in ability to earn wages in their usual occupation. In the vocational field, generally accepted methodology (Field, 2012; Johnston & Growick, 2003; Weed, 2000) consists of obtaining information on the individuals’ education, training, work experience, and transferable skills to establish a pre-injury vocational profile. Functional limitations identified by a medical expert are factored in allowing the expert to create a residual profile and a list of occupational alternatives. The vocational expert then identifies the plaintiff’s access to the labor market and associated wages and a calculation is made on the difference between what the person could have earned if not for the injury and what they can now earn given their post-morbid capabilities, typically stated in present day dollars. The economist projects this loss over the individual’s anticipated work-life while accounting for inflationary measures and any other consumption variables (Austin, 2014). In cases involving a child, the predictability of future earnings becomes murkier as there may be no established education or work history to serve as a guide for future employment potential. In these situations, there may be more reliance by the courts on the usage of published tables that speak to how others of a similar background have fared in the U.S. economy (Chamallas, 1994). Utilizing tables found in the Bureau of Labor Statistics (BLS) or other sources, the courts may opt to simply identify the average wage of all other members of the same racial demographic group and conclude the individual would earn the same. Much in the same way that the BLS offers tables broken down by race, economists have access to life and worklife expectancy tables with similar demographic information (Dobson et al., 2023; Gilbert, 2018; Millimet et al., 2003). Despite Title VII of the Civil Rights Act of 1964 prohibiting discrimination in hiring, promotion, discharge, pay, fringe benefits and other aspects of employment on the basis of race or color, a review of these tables finds that Black and Hispanic persons, among other minority groups, experience lower labor market participation and earnings across these variables when compared to Whites. Yet most States continue to accept the use of race-based tables to arrive at monetary damages for a plaintiff, regardless of the persons unique vocational strengths. Recently, and discussed below, a few States have enacted statutes prohibiting consideration of race in establishing future earnings and monetary damages. Vocational experts will need to be aware of these rulings. For those working in States or in Federal court where race-based data may be allowed, it will be necessary to consider whether continued use of these tables offer a fair evaluation of earning potential or conflict with the experts’ ethical code or concept of social justice.
Use of Race in Estimating Future Wages
In cases where a plaintiff successfully proves liability, they may seek damages based on a reduced ability to work and earn wages in their usual and customary employment. Courts may turn to vocational experts and forensic economists, individually or in tandem, to identify damages that would make the plaintiff “whole.” The vocational expert generally takes into account the relevant vocational factors to assess the potential to return to past or alternative work, the associated wages of those activities, and the anticipated time required to be hired into those activities. The economist then projects the difference between pre- and post-injury earnings over the course of the individuals’ work-life expectancy (Millimet et al., 2003).
Through the systematic method of gauging transferable skills and studying the individual’s accessible labor market, the vocational expert is able to provide an assessment of the types of occupations and number of jobs an individual can hold both pre- and post-injury, as well as the impact on their ability to earn income (Johnston, 2003). The RAPEL method essentially summarizes the generally accepted methodology in the field (Weed, 1993, 2000). It refers to the establishment of a rehabilitation plan based on functional limitations, vocational strengths, retraining and job placement services; the plaintiff’s access to the labor market as determined through a transferability of skills analysis; the likelihood that the client can be successfully placed in those jobs identified through the skills analysis; the difference between an individuals’ capacity to earn prior to and following the incident, and the plaintiff’s work-life expectancy.
When the aggrieved individual is a child however, education and work experience is unlikely to have been established. While the vocational expert is more likely to take into account individual factors such as parental education and earnings, the presence of two parents, and other family trends in predicting future wage potential (Akee et al., 2010; Lee & Seshadri, 2019; Mayer, 2010; Sharma, 1997), courts may opt to instead turn solely to economists to utilize published tables to predict future earnings. In many cases demographic variables, including race, influence these predictions (Avraham & Yuracko, 2018).
In cases involving a child or other individual without a work history, the use of race-based tables is utilized to predict likely educational attainment, labor force participation, and ultimately, wages. While the expert may defend this as the most likely outcome given the law of averages, critics argue that it is inherently based off a history of discriminatory practices and ignores the individual’s true potential to overcome barriers to maximum earnings. That is, by relying on employment and wage data generated on past discrimination of minority groups in hiring practices, the tables would undervalue the individual’s future potential if those detrimental policies were to be overcome. Race- and ethnicity-based statistics “assume that the current … racial pay gap will continue in the future, despite ongoing legal and institutional efforts to make the workplace more diverse and less discriminatory” (Chamallas, 1994). The Code of Ethics from the Commission on Rehabilitation Counselor Certification (2023) mandates that the rehabilitation counselor (nee vocational expert) “reduce bias, minimize discrimination, and prevent harm…when working with clients from diverse racial, cultural, and ethnic groups”. Under the Code, rehabilitation counselors “are committed to…taking appropriate action when diversity issues occur, and being accountable for the outcomes as they affect people of all races.” The International Association of Rehabilitation Professionals Code of Ethics (2024) similarly mandates that it’s members “will not condone or engage in discrimination” on, among other variables, culture, ethnic group, race, and socioeconomic status. Beyond potential conflict with their ethical code, the expert must carefully examine whether the use of these tables directly harms the individual and fails to achieve the goal of making the client “whole” and instead artificially harms the plaintiff. With estimates of pre-trial settlement ranging from 67% to 95% of all filings (Eisenberg & Lanvers, 2009), the full scope of the use of race statistics by forensic experts in establishing future earnings is difficult to accurately assess. A 2009 survey of forensic economists found 44% of respondents reported taking race (and gender) into consideration when projecting the future earnings of a child (Engstrom & Rabin, 2019). Critics argue the use of these race-based tables to establish future earnings has the potential to adversely impact persons of color (and women). In an analysis of two identical claims differentiated only by race and gender, it was determined that “a 20-year-old African American female plaintiff would recover only $1.24 million in future lost wages, while her white male counterpart would recover $2.28 million—almost twice as much—even holding constant the two plaintiffs’ educational attainment.” (Soffen, 2016). In U.S. vs. Bedonie (2004) two different earnings assessments were run. The standard methodology involving using tables limited to race and sex yielded a projected loss in earnings of $171,366, while using tables that blended race and sex among other individual-specific factors established a projected loss in earnings of $308,633. In G.M.M. v. Kimpson (2015) attorney’s representing a 4-year-old Hispanic child asked for $3.4 million based on the boy’s parents both having college degrees while the defense countered with $1.5, arguing that because only 7% of Hispanics obtain college degrees, the boy was unlikely to attain this educational level. Defenders of race-based tables argue that - regardless of the cause - future lost earnings is most accurately estimated when demographic characteristics, including race, are considered. That is, regardless of the individual’s potential the reality is that race has been shown to influence future earnings and therefore must be taken into account. Critics counter that these practices are discriminatory and effectively compound hiring practice discrimination. They argue the tables fail to take in the potential for any one individual to exceed racial norms and that projections about future earnings incorporate the levels of racial discrimination suffered by previous generations (Engstrom & Rabin, 2019). Recent legislation has attempted to address the constitutionality of the use of these tables.
Discrimination in Employment Practices
Claims of discrimination in employment can be difficult to prove. It is unreasonable to expect an employer to explicitly state discriminatory intent. In a court of law, the petitioner must establish prima facie evidence to support their claim. Specifically, they must demonstrate that, at first glance, there is enough evidence to substantiate a claim. In response, the employer has the opportunity to refute that claim as having no basis. That is, that race played no role in the employment decision. In those cases where discrimination occurs, whether or not it is tried in a court of law or even recognized by the respective parties, scholars and practitioners interested in social justice are concerned with root causes of discrimination in employment. This too can be difficult to determine. Lang and Spitzer (2020) provide a thorough review of the literature pertaining to theories behind discriminatory practices. Root causes, they argue, fall into one of three categories: discrimination by employers, discrimination from co-workers, and discriminatory attitudes of customers. These root causes may not be overt or even intentional. Instead, it is possible that the discriminatory action is subtle or even accidental (Jones et al., 2017). Regardless of intent or cause, in the workplace, it is both illegal and socially unacceptable to discriminate on the basis of race (Perry et al., 2015).
Recognizing a pervasive pattern of employment discrimination, Congress enacted a series of statutes to deal with issues of race, age, and disability status. Specific to race, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race and color in hiring, promotion, pay, and other employment-based practices. Title VII sought to allow minorities the opportunities to compete for jobs solely on qualifications, without the influence of their racial background. This extended to employment practices that adversely impact persons of color. In Hazelwood School District v. United States (Hazelwood School District v. United States, 1977), the court found the school district discriminated in hiring practices by recruiting teachers from predominantly white universities in the early 1960s, ignoring the two local predominantly Black universities, and did not hire its first Black teacher until 1969. This recruitment pattern resulted in Black teachers being disproportionately underrepresented in the district. In Griggs v. Duke Power Co. (1977), the court found that the use of a high school diploma or standardized general intelligence test as a prerequisite to hire into more prestigious and higher paying jobs disproportionately impacted Black applicants, who in the 1950s had faced barriers to graduation. The courts ultimately ruled that Duke failed to demonstrate that these requirements in any way predicted job performance and instead served as an artificial barrier to Blacks moving into these positions. These are but two early cases that were remedied by Title VII.
Over 50 years later, evidence of discriminatory practices remains. Recent examples give credence to the claim that inequitable practice in hiring persist today, highlighting the potential for persons of color to be adversely impacted in employment rates and compensation, and serving as a cautionary tale for those relying on race-based tables to generalize an individual’s future earning capacity. Following are select cases.
Failure to Hire Based on Race
EEOC v. Choctaw Transp. Co., Inc (2012), involved an allegation of refusal to hire a Black applicant by a marine construction and transportation company. The EEOC alleged that Choctaw had engaged in a pattern of segregating its’ workforce and refusing to hire Black applicants as deckhands. The company agreed to pay $75,000 to the applicant and make efforts to fill 25% of available positions with African Americans. A similar case is found in EEOC v. Orkin, Inc. (2006). The EEOC brought an allegation that the company refused to reinstate a Black former employee to a service manager position at the Memphis location and paid him less when he held the position because of his race. Orkin paid $75,000 to settle. In EEOC v. Bankers Asset Mgmt. Inc. (2012), a real estate firm paid $600,000 to settle a lawsuit alleging the company refused to hire Black applicants at select locations strictly based on race.
Discrepancy in Wages Based on Race
EEOC v. Material Resources (2009). Material Resources, an Illinois packaging and warehousing company agreed to pay $57,500 and provide training to settle a race discrimination and retaliation lawsuit alleging that the company failed to provide a Black employee the pay raise and health insurance coverage provided to his White co-workers, and then subsequently fired him in retaliation for filing a charge of race discrimination with the EEOC. Similar cases are found in EEOC v. Corporate Express Office Products, Inc. (2009) involving a Black account manager granted promotion but without a corresponding increase in pay received by his white counterpart and EEOC et al. v. KOKH (2011) involving a Black reporter being paid less than her white counterpart.
Discriminatory Assignments Based on Race
EEOC v. Danny’s Restaurant (2019). According to the EEOC, Danny’s Downtown Cabaret, A Mississippi night club, subjected Black dancers to discriminatory conditions of employment for years, including limiting the number of shifts Black dancers could work and forcing the dancers to work at a related club, Black Diamonds, where pay and working conditions were inferior to those at Danny’s. Dancers who refused were fined and prohibited from working at Danny’s. The dancers received a positive verdict in the amount of over $3,000,000. A similar case is found in EEOC v. Jackson National Life Insurance Company (2020), in which twenty-one employees filed an EEOC complaint about receiving less pay than their white colleagues and being passed over for promotions and in EEOC v. U-Haul (2008) in which, among other things, Filipino mechanics were passed over for promotions in favor of less qualified Whites.
Use of Race-Based Tables
These and similar cases provide evidence that discrimination in employment practices unfortunately persist. It can therefore be argued that race-based tables, which track hiring, promotion, and pay patterns of the larger population of minority groups, are inherently biased. This means, if they take into account the employment situation for an entire racial demographic, they must be at least partly influenced by those cases in which individuals were adversely impacted by their race. Through individual instances of failure to be hired, receipt of lower wages, and having been assigned to less prestigious positions, the mean income of the entire population of a discriminated-upon race is lowered. Thus, the argument that a child’s future earning capacity will equal the average of those with a similar racial background is, by default, discriminatory. Yet there is currently no federal law that prohibits the use of these tables, and their use remains largely unquestioned at the State level (Avraham & Yuracko, 2018). The States of Georgia (GA. CODE ANN. § 24-14-44, 2017) and Rhode Island (9 R.I. GEN. LAWS § 9-19-38, 2017) specifically employ statutes allowing the trier of fact to use race and/or gender-based life and work-life expectancy tables. In Georgia “all civil proceedings where the life expectancy of a person shall be an issue, the American Experience Mortality Tables shall be admissible as evidence of the life expectancy of such person.” Rhode Island states that "in any proceeding commenced in any court, commission, or agency, when the life or work life expectancy of a person shall be at issue or when it is necessary to establish the expectancy of continued life or work life expectancy of any person from any period of the person’s life, whether he or she is living at the time or not, the most recent issue of “The United States Abridged Life Tables or Tables of Work Life Expectancies as published in “Work Life Estimates: Effects of Race and Education” shall be admissible in evidence as competent evidence of such matter.” These sources include numerous tables broken down by, among other variables, race. Other states (Kansas, Kentucky, North Dakota, and Tennessee) allow similar usage (8 Tenn. Civil Pattern Jury Instructions, app. C, 2012; Kan. Civil Pattern Jury Instructions § 171.45, 2016; Ky. Wrongful Death Actions § 13:3, 2012–2013; N.D. Civil Pattern Jury Instructions § 70.47, 2012), while still others make no prohibition on their utilization, rendering it common for courts to rely on race-based data. Conversely, some States, beginning with Oregon (2018 Ore. H.B. 4008) in 2018 and California in 2019, have moved to eliminate this practice. In California, Civil Code 3361 asserts that race cannot be considered in “estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death”. In 2019, S.B. 41 was subsequently signed into law prohibiting reducing lost future earnings in personal injury or employment discrimination cases (Engstrom & Rabin, 2019). Similar steps have been taken by New Jersey (N.J. State. Ann 2A:53A-5.1, n.d.) with nearly identical verbiage prohibiting reduction of “estimations, measures, or calculations of damages for lost earnings or impaired earning capacity shall not be reduced because of race”, among other demographic variables.
In Kimpson, the case involving the 4-year-old boy disabled from living in the apartment coated with lead paint, the trial judge took the unusual step of requesting two separate analyses from the economist. The first, using a strictly race-based analysis yielded a significantly lower earnings arc than did the second analysis, which factored in individual variables including the mother’s Masters’ degree and father’s bachelors’ degree. While only 7% of Hispanics had a college degree at the time of the ruling, the child had two parents with a college degree. The court ultimately opined that using the plaintiff’s race to assess damages was in violation of due process because it created an arbitrary and irrational action and subjected the plaintiff to a “disadvantageous estimate” of damages “solely on the basis” of ethnic classification. Instead, the court ruled, individual characteristics of the child and family need to be considered, because had he not been injured, “there was a high probability of superior educational attainment and corresponding high earnings” (G.M.M. v. Kimpson, 2015).
A similar finding unfolded in McMillan v. City of New York (2008) in which the court rejected the use of life expectancy tables to prove that a spinal cord-injured African American was likely to survive for fewer years than their white counterpart. The court concluded that their use violated the equal protection and due process clauses of the United States Constitution. In Theodile v. Delmar Systems, Inc. (2007), the court rejected an appeal by defense to use race-based tables, reflecting the opinion by some courts that the demographic variables are insufficient in estimating future potential of the individual, and implying that specific vocational characteristics need to be considered. In the Bedonie matter, the case involved a Native American deceased male. The economist testified that the deceased would have earned $433,562 over their lifetime. When the figures were recalculated without consideration of race at the court’s request, the amount jumped to as high as $850,959.
Implications
The use of race-based data can assist in understanding the reality of labor market conditions in the United States for the general population of persons of color, including Blacks/African Americans, Hispanics, and other underserved populations. Statistically, these and select other minority groups attain lower levels of education, obtain less prestigious jobs, have longer durations of unemployment, achieve lower wages, and experience lower work-life expectancy, when compared to their white counterparts. Their use in predicting future earning capacity in disability cases involving children and other individuals however ignore the uniqueness of the individual in favor of deference to the average earnings of all individuals in the same category of race. Defenders of race-based statistics point to the accuracy of the tables in predicting the most likely outcome for an individual, or some measure of central tendency such as the statistical mean. Namely, the most likely occurring wage when the entire population is considered. Critics however note that the tables ignore the personal characteristics and serve to create a heightened risk of miscalculation. Each individual possesses unique characteristics and has the potential to fall anywhere on a larger distribution of earnings. Race-based tables have benefits in reflecting the current situation of a particular group but may be insufficient in predicting future earning capacity. To more accurately predict the individual’s future earnings, critics argue, it is necessary to consider the plaintiff’s age, education, and work history. For children or others without an established education or work history, consideration may instead include the parent’s education and work history and the child’s developmental stage (Neulicht & Behrens, 2006). Other extraneous variables such as the presence of one versus two parents in the household, sociological makeup of the neighborhood in which one resides, exposure to other adults working in prestigious occupations, the number of siblings and the presence of any with a disability in the household, and immigration status, among others, can be argued to influence future academic and employment success, and more critically, serve to pinpoint true future earnings potential (Borjas, 2006; Brown, 2010; Chetty & Hendren, 2016; Hastings & Schneider, 2020; Howell, 2019; Painter & Levine, 1999; Powell & Parcel, 1997; Sharma, 1997; Stabile & Allin, 2012). While the expert has a responsibility to offer an opinion within reasonable degree of certainty (Cappellino, 2022), using the entire population of a particular race to assume an individuals’ path does not meet this threshold. To increase this certainty, vocational experts must consider the age, education, work history, transferable skills, and labor market access of the individual. When involving a child, the expert may consider the PEEDS-RAPEL approach as proposed by Neulicht and Behrens (2006) or some other method that goes beyond a simply default to the average of all individuals from the same racial demographic.
Some States now prohibit the use of race-based norms. For these reasons it is anticipated that the vocational expert will take on a larger role in predicting future earnings, particularly in child cases, as they are uniquely trained to consider the influence of parental education and work and the child’s potential to meet or exceed parental achievement. Because discrimination exists in the workplace, race-based tables themselves have the potential to be discriminatory. The CRCC code of ethics mandates that the vocational expert “minimize discrimination.” The use of race-based tables would appear to contradict this and ignores the potential of the individual to overcome discriminatory practices in employment. While the expert may still need to understand the “average” of similarly situated individuals, it is imperative they also identify vocational assets and barriers that would lead the individual to differ from the norm. This approach will not guarantee that the individual will receive wages greater than the average of all individuals with the same racial background. It will however reflect a more accurate estimation of the individuals’ future.
In States prohibiting the use of race-based tables, vocational experts have no choice but to follow the law and avoid reduction of future earning capacity on the basis of race. In other States, the vocational expert may need to defend their opinion if it goes counter to race-based earnings arguments. By understanding the variables that influence childhood earnings, the expert will be better able to articulate deviation from these tables. While the use of life and work-life expectancy tables by economists can be intimidating, the vocational expert is qualified to provide analysis and testimony on how these tables have the potential to undervalue the child’s true future earnings.
Vocational Experts utilize methodology that considers an individuals’ age, education, and work history in identifying labor market access and future earning capacity. When the plaintiff is a child, courts have often turned to life and work life expectancy – broken down by demographics including race - to identify an expected outcome. It has been argued by some that these tables are unconstitutional (Rodriguez & Kwiatkowski, 2018) as it contradicts the right to equal treatment. Decisions such as Kimpson and McMillan reflect a move by some States to reject race-based earning projections. If this trend continues the result would seem to be an increase in the role of the vocational expert, who is uniquely qualified to identify earning potential based on the individuals’ unique vocational factors, irrespective of race. The expert will need to recognize the admissibility of race-based tables in the State in which they are practicing, and where allowed, understand how to rebut testimony that relies on these tables. While the impact of race on employment cannot be ignored neither can the potential of a child to overcome racial barriers to attain higher education and occupational prestige. The CRCC and IARP Code of Ethics speak to this charge, and cases such as Kimpson and Bedonie reflect the growing acknowledgment of the discriminatory impact of race-based tables.
Author Notes
Craig Johnston, PhD, CRC, is an Associate Professor with Northeastern Illinois University, Department of Counselor Education, in Chicago, IL. He obtained his PhD from The Ohio State University and has worked for the past 26 years as a rehabilitation counselor providing vocational assessment to individuals with disabilities and expert witness services in State and Federal courts. He currently teaches in a Masters’ level program at NEIU with coursework on vocational assessment, job placement, evaluation techniques, and psychological diagnosis. He has served as an editorial board member on three separate journals over the course of his academic career. He estimates that over 1000 practicing counselors in the United States have been students in his courses.
Correspondence concerning this article should be addressed to Craig Johnston, Northeastern Illinois University, 5500 N. St. Louis, Chicago IL, 60625
E-mail: c-johnston@neiu.edu