Addressing The Gender Gap In Personal Injury Damages Assessments: An Option Other Than "Othering"?

• Published date: 15 March 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Personal Injury
• Law Firm: Watson Goepel LLP
• Author: Cassidy Gale

' Othering' refers to 'viewing and treating a person or group of people as different from yourself and most people. Othering can lead to discrimination and prejudice against marginalized groups.'

In November 2021, I attended a Q&A session with Former Supreme Court Chief Justice Beverly McLachlin as part of an all-women lawyer's conference. What follows is a heavily paraphrased summary of one of the discussions, so I hope the former chief justice will indulge my summarizing her remarks.

Perhaps unsurprisingly, given the context, one of the questions asked was how we can marshal true equality between women and men in the law?How do we ensure that women are given equal opportunity to advance in the profession, to take leadership positions, and to enjoy both economic prosperity and hierarchical parity with our male colleagues? Her response was pragmatic: women will not achieve economic equality, in the legal profession or otherwise until there is legitimate sharing of childcare responsibilities. While women (and people capable of childbirth) still bear the greater burden of childcare, they will continue to suffer the corresponding economic inequities. This issue is systemic. It impacts women and child-bearing folks across most, if not all vocational sectors, and results in lower wages, lower attachment to the workforce, increased time away from employment, and reduced opportunities for advancement.

Inequity in Personal Injury Litigation Assessments

Unfortunately, working in personal injury litigation, I see this inequity being imposed on my female clients who are advancing claims for loss of future earning capacity.

When the court is assessing the value of the plaintiff's future wage loss, it asks: what would this plaintiff have done for work had the injury not occurred? What would their career path and earnings have looked like? In many cases, particularly for young Plaintiffs, the court relies on labour market data: amalgamated stats of all BC residents at each level of education and their corresponding average income levels, as a comparator for the Plaintiff. Essentially: what is the average income earning capacity for a BC female with the same level of education as the Plaintiff? How does that compare to the earning levels of the Plaintiff now that the injury has occurred?

But these stats are also gendered, and in using the female-based stats, it incorporates the fact that many women take more time away from the workforce to have and rear children, must...