Should ethnicity play a role in determining tort damages? (Part I)

By Amy Luong
Associate Editor, Vol. 21

In this three-part series, the author provides the following: Part I – Background of how one jurisdiction handles this question; Part II – background of this issue in another jurisdiction; Part III – comparison of the two jurisdictions, examining the question that if ethnicity should not play a role in reducing damages, then should it play a role in increasing damages?

In higher education, race-based admissions policies are prohibited for the purpose of remedying past discrimination.[1] However, the Supreme Court did uphold a quasi-race-based quota system, to allow for “educational benefits that [would] flow from a diverse student body.”[2] In labor and employment, discrimination based on race is expressly prohibited as a factor in selecting job applicants.[3]

The Eastern District of New York has held that taking a plaintiff’s Hispanic ethnicity into account when calculating tort damages would violate due process and equal protection.[4] In G.M.M. v. Kimpson, Plaintiff filed action on behalf of her child, who developed a central nervous system disorder as a result of living in Defendant’s apartment.[5] The jury awarded Plaintiff $2,005,000,[6] finding that Defendant failed to properly remove lead-based paint in the apartment where Plaintiff resided, which affected the child’s development in the womb and first year of life.[7]

The court reasoned that exclusion of arguably relevant evidence will be required to protect against stereotyping that unfairly reduces damages to members of disadvantaged minority groups.[8] Furthermore, the court reasoned that “even when racially-, ethnically-, and gender-based tables have probative force and are therefore relevant, there are instances under Rule 403[9] of the Federal Rules of Evidence that they may be excluded.”[10]

In reaching its result, the court relied on the McMillan Rule, which states “Reliance on ‘race’-based statistics in estimating life expectancy for purposes of calculating damages in this case is rejected in computing life expectancy and damages.”[11] In line with McMillan, the G.M.M. court does not overreach as to say that ethnicity is irrelevant, and admits that it could be relevant in other cases.[12] Even if the court allowed for ethnicity to be a factor in determining damages, and the evidence of aforementioned prejudicial tables is admitted, juries are still generally afforded wide discretion in deciding the weight that evidence affords, and are not bound by statistics presented.[13]


[1] Regents of Univ. of California v. Bakke, 438 U.S. 265, 266-67 (1978) (prohibiting “petitioner from taking race into account as a factor in its future admissions decisions.”)

[2] Grutter v. Bollinger, 539 U.S. 306, 307 (2003), superseded by Mich. Const. art. I, § 26.

[3] 42 U.S.C.A. § 2000e.

[4] G.M.M. v. Kimpson, 2015 WL 4572470, at *30 (E.D.N.Y., 2015) (stating that reliance on child’s Hispanic ethnicity to reduce damages violated due process and equal protection).

[5] Id. at 1.

[6] Id. at 1.

[7] Id. at 1.

[8] Id. at 29.

[9] “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

[10] G.M.M. v. Kimpson, 2015 WL 4572470, at *29.

[11] McMillan v. City of N.Y., 253 F.R.D. 247, 256 (E.D.N.Y. 2008).

[12] G.M.M., 2015 WL 4572470, at *29.

[13] 2 Litigating Tort Cases § 26:16.

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