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.14 As discussed in chapter 5, lead poisoning istypically caused by the ingestion of paint chips or dust, likely to be foundin older, deteriorating buildings in low-income neighborhoods.Depressedawards for plaintiffs derive from the fact that the population of lead paintvictims contains a disproportionate number of young, typically poor, Afri-can American or Hispanic children.When lost earning capacity is calculatedusing race-based tables, the awards are considerably lower than they wouldbe for comparably injured white children.Landlords and government hous-ing authorities the typical defendants in lead paint cases thus have lessincentive to take measures to clean up toxic hazards in the neighborhoodsmost affected by lead paint.The reliance on race- and sex-based tables is not subtle discriminationbut overt discrimination of the kind that the U.S.Constitution and statutoryantidiscrimination laws have long outlawed or at least have made very hardto justify.It is well established in constitutional law that race-based classi-fications are suspect and trigger strict scrutiny and that gender-based clas-160 | The Measure of Injury sifications are disfavored and trigger a stringent intermediate scrutiny.15 Incases of employment discrimination governed by Title VII of the Civil RightsAct of 1964, virtually all race-based classifications are prohibited, while sex-based classifications are allowed only in the rarest of cases in which sex is abona fide occupational qualification for a particular job.Notably, in City ofLos Angeles Department of Water and Power v.Manhart,16 the U.S.SupremeCourt in 1978 held that sex-based actuarial tables could not be used to jus-tify requiring female employees to pay higher monthly contributions to anemployer-run retirement fund,17 despite the fact that women as a group livelonger than men.This strong distaste for explicit race and sex classifications,however, did not immediately carry over into ordinary tort cases.Instead,when the gender and race classifications were embedded in statistical tablesand used by experts to construct loss appraisals, the discrimination tendednot to be noticed and was accepted as natural and unproblematic.The illegitimacy of using gender- and race-based tables to calculate lossof future earning capacity is most evident when we consider the difficultycourts and juries face when the injured party is biracial or multiracial.In hisruling barring the use of race to determine the life expectancy of an AfricanAmerican plaintiff, Judge Weinstein stressed that it was not scientificallyacceptable to hinge damage awards on ascriptions of a plaintiff s race, giventhe history of racial mixing in U.S.society.18 Weinstein viewed race largelyas a social construct and remarked that most Americans would consider it absurd to attempt to categorize a person such as Barack Obama as either white or black for purposes of determining damages.As precedent, hecited the 1991 case of Wheeler Tarpeh-Doe v.United States,19 a case involv-ing the categorization of a biracial male child whose father was Liberian andwhose white mother lived in the United States.In that case, the court wasconfronted with the uncomfortable question of whether it should select the white tables or the black tables to determine lost earning capacity.Theopinion was notable for its time because the court refused to decide whetherthe child was black or white for purposes of choosing the appropriate sta-tistic.Instead, the court decided to use blended earnings tables combiningpersons of all races.Until Judge Weinstein s ruling, however, the proper use of statistical tablesto calculate future economic losses had been a low-visibility issue, eventhough courts had struggled with the problem for more than 100 years.Onenotable early discussion can be found in The Saginaw and the Hamilton, a1905 admiralty case involving wrongful death on the high seas, decided inthe Southern District of New York.20 In that case, the admiralty commis-Damages | 161 sioner was called upon to calculate the economic losses stemming from thedrowning death of eight passengers and crew members
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