Position Statement – 2025
A.5379 (Bores)/S.3888 (Fernandez)
Support
The Women’s Bar Association of the State of New York (“WBASNY”) unequivocally supports A.5379 (Bores)/S.3888 (Fernandez), amending the Civil Practice Laws and Rules to prohibit the consideration of a person’s race, creed, color, national origin, religion, sexual orientation, gender identity or expression, sex, familial status, marital status, or status as a victim of domestic violence in calculating damages for lost earnings.
Specifically, this bill amends the Civil Practice Law and Rules by adding Section 5022 to prohibit the court from basing damages for lost earnings or earning impairment on a person’s race, creed, color, national origin, religion, sexual orientation, gender identity or expression, sex, familial status, marital status, or status as a victim of domestic violence. It further prohibits the reduction of damages based on statistical tables alone, requiring more information to ensure equitable decisions are made.
Historically, women and minorities have experienced disparities when Courts calculate civil damage awards, mainly when income is used as a factor in connection with such determinations. Systemic societal inequities in the salaries of women, men and minorities compared to white counterparts have caused such disparities. This legislation, by requiring damages to be fairly valued and awarded regardless of race, creed, color, national origin, religion, sexual orientation, gender identity or expression, sex, familial status, marital status, or status as a victim of domestic violence, will promote a more equitable society.
When damage computations are based on earned income, males have traditionally been awarded more than females due to the gender pay gap. Minorities similarly face pay discrimination and, accordingly, are also treated as having less value for purposes of determining damages. Furthermore, child rearing and work done at home, “women’s work,” are awarded little or no value in the calculation of damage awards, despite national data from the Department of Labor demonstrating significant time spent, particularly by women, on these activities as well as the average cost of replacing those services. These factors should be considered credible sources of data as a basis for including loss in the value of household services in calculating economic damages.
The current law perpetuates discrimination. Awards for damages in civil suits should be calculated and measured equitably. In relying on a person’s identity when calculating compensation, courts only compound and continue statutory discrimination. By removing the court’s ability to weigh such factors, this crucial legislation aims to level the playing field for all New Yorkers and moves us to a more just and equitable society.
WBASNY unequivocally supports A.5379 (Bores)/S.3888 (Fernandez) and urges the legislature to pass this important legislation.
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