Point

There recently have been two proposed tort reform bills in our state Legislature regarding gender and racial discrimination. In essence, they seek to take away the ability of a claimant to receive compensatory and punitive damages in civil court. Compensatory damages reimburse for loss, injury or harm caused to a claimant, while punitive damages are meant as a disincentive for the behavior that caused harm in the first place. “Tort reform” refers to a reduction or limitation of these damages.

The proposed bills would basically take away a claimant’s ability to sue his or her employer for discrimination beyond simple back pay, attorney’s fees, etc. There are several implications of nullifying compensatory and punitive damages in this instance. Mostly, I see problems with the lack of compensatory damages; it would say that your suffering was worth nothing.

A woman can sue an employer for gender discrimination and get back pay, but what about the emotional frustration? Isn’t that worth something? Repealing compensatory damages is like saying “the time and energy you spent dealing with this harm isn’t worth a dime.”

If you, like me, have ever had a close relation experience something like a car accident due to another negligent driver, you know that the time and energy spent on the harm sure as hell are worth a lot more than nothing. While a car accident isn’t really comparable to workplace discrimination, it does illustrate the point that suffering is worth something beyond the face value of a wrong. Thus, compensatory damages shouldn’t be redacted from current gender and race discrimination law.

Then there’s the punitive side of tort reform. When awarded by the courts, this kind of damage puts economic incentives to change behavior on the party responsible for harm. In this instance, it would put further monetary pressure on an employer to not discriminate in the future beyond court costs and reinstated back pay. Corporate fines are often said to be ineffective at changing behavior. I know very few citizens who have changed their driving behaviors after getting speeding tickets. Yet, the government still gives them out.

If I knew that every time I sped I would get a ticket, I probably wouldn’t ever speed. That’s the inherent problem behind punitive damages applied to corporations; the damages are perceived as minimal and inconsistent – kind of like how I perceived speeding enforcement when I got my three speeding tickets. It’s not that punitive damages are ineffective; it’s that they aren’t employed consistently enough. Not all cases go to court; not all victims file charges. Thus, the real problem behind punitive damages is that not every act of discrimination is subject to them, but that doesn’t warrant their erasure.

Tort reform takes away the ability of citizens to receive monetary compensation for non-physical suffering and shirks the real problem behind punitive damages’ ineffectiveness. On this basis, the proposed pieces of legislation should not be enacted.

Reginald Young ([email protected]) is a junior majoring in legal studies and Scandinavian studies.

Counterpoint

Republican state legislators have begun to tackle tort reform by proposing two bills which would
limit excessive compensations and keep frivolous lawsuits out of the oversaturated court system.

Both pieces of legislation – one relating to racial discrimination, the other to gender
discrimination – eliminate the ability of the claimant to receive compensatory and punitive
damages while still forcing those found guilty of discrimination to pay back pay, additional
costs and attorney fees. One bill also requires the claimant to exhaust all administrative
remedies through the Department of Workforce Development before filing a lawsuit in the
courts. Both bills are part of a larger nationwide legal movement called tort reform, which aims to cap awards of damages and procedurally limit the ability to file claims.

The world of tort law – or in layman’s terms, civil lawsuits claiming injuries – is expanding
at an enormous rate. Legislatures are expanding possible crimes, individuals are suing at greater
rates and lawsuits are becoming more and more costly due to their reliance on expert witnesses
and several-day trials. These, along with ever-crowding court dockets, are making civil lawsuits
more and more expensive by the day.

The goal of tort reform is to stop this dangerous trend without infringing on a person’s right to be
compensated for wrong done against them.

By forcing individuals to exhaust administrative remedies before going straight to the courts, the legislation cuts costs and limits the amount of frivolous lawsuits. It also allows for internal conflict
resolution by judicial processes and administrative law justices which, for all intents and
purposes, are the same as the courts. Victims are still compensated for the wrong done to them, and companies are still punished.

By capping awards of damages, tort reform bills are ensuring that victims are receiving all
the money they are owed – no more and no less. With potential compensation for things like
emotional distress, pain and suffering, individuals are suing for outrageous amounts, often for
millions of dollars when they are owed as most a few thousand dollars. These damages are also
extremely difficult to calculate, and any awards are based on speculations at best.

Punitive damages, which are theoretically meant to deter companies, especially large companies,
from engaging in unlawful activity, are largely ineffective at doing so. A multi-billion dollar
company hell-bent on screwing over its workers is not going to be phased by punitive damages.
It will only force a settlement, brush the case off its shoulder and include it in the “cost of
business” column.

A far more effective way to get the attention of these companies and keep them from engaging
in illegal activities is through class-action lawsuits, which are not affected by tort reform. Class actions bring together a large group of claimants who have been wronged in the same way into
one lawsuit, putting the voice of thousands behind one. Although the payouts are often smaller,
the effect is twice as strong.

Tort reform does not inhibit the rights of individuals or make it less likely that someone can
receive damages for being wrongly discriminated. It only cuts back on the frivolous and costly
lawsuits which saturate our judicial system and of which some individuals have come to take
advantage.

Alex Brousseau ([email protected]) is a second year law student.