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The federal Victim Compensation Fund has not pleased everyone. But it just might have handed feminist legal scholars a moral victory, as the first major settlement that recognizes women as men — at least in terms of future lost wages. The fund, which compensates victims of the Sept. 11 terrorist attacks, abandons a common tool relied upon to calculate compensatory awards in trials and settlements: gender-based economic tables that value the lost wages of men more highly. Although largely symbolic as a precedent, the fund’s decision has activist groups like NOW Legal Defense and Education Fund hoping that it will help to change attitudes. “It stops and erases the bias we know is inherent in women’s compensation,” says NOW LDEF legal director Martha Davis, who is in the midst of a publicity blitz, urging female plaintiffs’ attorneys and advocacy groups to use the male data in compensatory damage awards. Female plaintiffs don’t have history on their side. For years the U.S. Bureau of Labor Statistics set the accepted standard with work-life expectancy tables weighted by such factors as gender, education and race. One fundamental assumption: Women will drop out of the workforce for several years to raise children. The table has had a marked effect. From 1993 to 1999, for instance, the wrongful death of an adult male averaged an overall median compensation of $800,000, but for women it was $626,500, according to a 2000 nationwide study conducted by Jury Verdict Research. Hardly anyone will argue that the BLS table is cutting-edge current. The government quit compiling it in 1986 (last using 1979-80 data), and has no intention of reviving it, says BLS spokesman Gary Steinberg. In the meantime, economists and industry groups have published a few of their own private work-life expectancy tables, some of which have been used in tort litigation, despite controversy over their methodology. Given the options, most economists prefer the older BLS tables, simply because the government’s methodology is available for critical scrutiny, says forensic economist Jerome Staller. “But the problem is, if you look at the government’s female data, you’re really looking at some grandmothers now,” says Staller, who is president of the Center for Forensic Economic Studies. “It’s just a different era.” Different indeed, says feminist legal scholar Lucinda Finley of the State University of New York at Buffalo. “These tables reflect assumptions about interrupted work lives and women’s earning history that are becoming less and less reflective of women today,” Finley says. Ignored is the increased number of women who have foregone childbirth since 1980, she says. Even when women do take time off to raise children, they are penalized in the data by having their work at home valued at zero. “Additional work as a nutritionist, chauffeur, maid, and financial manager of the home often gets lost in the shuffle,” Finley says. The table used by the Victim Compensation Fund takes some of the criticisms into account. The fund’s special master, Kenneth Feinberg, chose a more generous male-based table because he anticipates changes in female workforce life expectancy over the next 20 years, says Deborah Greenspan, an attorney in Feinberg’s office. Some economists believe that the work-life expectancy tables should continue to recognize the discrepancy between the sexes, because it’s real. “If you look at the data, women still do spend less time in the workforce than men do. I know it’s not politically correct, but it’s accurate,” says Dale Funderburk, a Texas A&M University economist who has also written about the tables. Judges already have the flexibility to go either way. More often, they are allowing a male-based workforce table to be used for a female plaintiff, especially if there is proof that the plaintiff had no intention of having children, says Walnut Creek, Calif., forensic economist Mel Fredlund, who has testified as an expert since the ’70s and writes computer programs that calculate gender-based damage awards. So change, if it comes, will be incremental. One pioneer has been Feinberg, the Victim Compensation Fund special master. His private mediation firm, The Feinberg Group, rarely uses gender-based data tables. Instead, it favors averages or blends of the gender tables. Jennifer Liberto is a free-lance writer in New York.

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