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As the special master of the Sept. 11 Victim Compensation Fund created by Congress is quickly discovering, the terrorist attacks on Sept. 11 were not simply “torts” and the compensation fund is not merely a means to compensate victims of the tragedy. In fact, the emotions that were triggered by the attacks are now resurfacing in the form of angry confrontations between the special master and representatives of the victims, who argue that the compensation scheme is far too stingy. We can all sympathize with the feelings of surviving family members, and the sad and difficult task facing the special master, Kenneth Feinberg. But, although pitched emotions are unavoidably triggered by these calculations, there are also basic principles of fairness — some of which are constitutional in scope — that the special master should honor in administering the fund. PERPETUATING DISCRIMINATION Ignoring these principles threatens the rights of women and minorities and perpetuates the history of government and private discrimination against these groups. First, the fund has proposed to provide individual assessments of compensation based on lost wages as well as a set amount to each surviving family for pain and suffering. Instead of focusing exclusively on employment in determining economic loss, however, the special master should develop a mechanism to compensate fairly the unpaid household work of victims — both full-time and part-time employees. In courtrooms across the country, the cost of household services lost through wrongful death is recoverable in tort actions. Ignoring this aspect of loss, as the fund’s proposed procedures currently do, has a greater negative impact on female victims than on male victims and their survivors. According to one study, married women working full time with children under the age of 18 perform approximately 35.6 hours of household services each week, as compared with 26.9 hours completed by men. In order to serve as a true alternative to litigation, the value of household services should be included in the economic loss calculation. Second, the fund should use compensation tables based on the latest available data. The fund seems to have retreated from its initial proposal to use decades-old data, which would have grossly underestimated the work force participation of women and minorities, in favor of more up-to-date information. The need for accurate data is particularly acute because the goal of the compensation fund is to project future loss, and the overall trend for many years — and presumably into the future — has been toward women’s greater work force participation. To capture this trend, the special master should make an explicit commitment to use the best available information. Third, the fund should not use gender-based or race-based compensation tables. In large part due to public and private efforts to eradicate discrimination, women and minorities enter the work force today with the hope that their careers will not be clouded by biases. Yet in a world in which women continue to represent a tiny fraction of corporate CEOs and African-American professionals have difficulty even hailing cabs, we know that such bias occurs daily. Use of sex-based and race-based compensation tables compounds the effects of this bias by spinning it out into the future. Unless neutral tables are used, women and minorities will be awarded lesser compensation based solely on their sex and race. Given the central role of the federal government in creating and administering this compensation scheme, there is a strong argument that such an approach would violate the equal protection guarantee of the Constitution. The primary goal of the special master and the Victim Compensation Fund should be to compensate victims of the terrorist attacks as fairly as possible, despite the understandable emotion surrounding the process. An approach that undervalues household services and caregiving, and perpetuates sex and race discrimination falls short of this goal, and flies in the face of America’s most cherished value of equality. Martha Davis is legal director of the NOW Legal Defense and Education Fund.

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