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2002-01-22

By Facsimile And E-Mail

January 22, 2002

Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530


Re: September 11 Victim Compensation Fund of 2001

Dear Mr. Zwick:

The September 11th Victim Compensation Fund ("Fund")1 represents the
commitment of all Americans to aid the victims of that terrible day as fully, and
as fairly, as possible.2 NOW Legal Defense and Education Fund is a leading
national non-profit civil rights organization that performs a broad range of legal
and educational services to define and defend women's rights. We are based in
lower Manhattan, and our staff has been deeply affected by the attack on our
city and our nation that day. We offer these comments in the same spirit of
compassion with which the Special Master attempts to help the victims if this
tragedy, and with the hope of ensuring that the Fund represents America's most
cherished values, including the equality of all persons before the law.

Many of the victims of the September 11th attacks were woman, the majority of
whom worked full time. Many of these women were also members of racial
and ethnic minority groups, as were large numbers of the tragedy's male
victims.




We are concerned that the Interim Final Rule setting forth federal regulations to implement the Fund
may discriminate against and threaten the constitutional rights of the victims of the terrorist attacks,
through the Fund's anticipated use of gender - and race-based date to determine compensation.3 This
practice, we believe, threatens the constitutional rights of women and minorities, spinning into the
future a history of state and private discrimination against these groups.

Troublingly, the anticipated use of such gender- and race-based data has not been disclosed by the
government in the Rule itself or in any of the explanatory materials provided to potential claimants
and the public to date (see infra). This seriously undermines the government's effort to ensure that
potential claimants can make "informed decisions regarding whether to file claims with the Fund.4

Further, we believe that the Rule undervalues women victims' contributions to their families and
society. Whether or not they are employed full time, women in America perform the lion's share of
essential, unpaid services including care-giving and household work. Such work is typically
compensated under tort law, yet the Fund's approach fails to capture the Significant value of this
labor.


The Fund's Anticipated Reliance On Gender- And Race-Based Data To Determine
Compensation Threatens The 9-11 Victims' Constitutional Right To Equal Protection.

Given the interest all Americans have in ensuring that the compensation process treat victims equally
and fairly at every stage, we urge the Special Master not to use gender and race as factors in
calculating compensation, whether to estimate victims' worklife and future earning capacity, or for
other purposes. As discussed further below, we are extremely concerned that the public and
potential claimants do not understand that the Fund may consider the victims' gender and race in
establishing awards, and indeed, may have been misled into believing that only factors of age,
marital status, past income and number of dependents would be relevant.

The stubbornly persistent wage gap between men and women, and between whites and racial and
ethnic minorities, 5 derives from a long history of government and private discrimination which has
favored male and white workers. In large part due to the commitment of the U.S. government to
eradicating discrimination and combating this legacy, 6 women and minorities enter the workforce
today with the hope that their careers will not be clouded by past or present biases against them, and
that they can pursue every opportunity available to all Americans. Courts have rejected and legal
scholars have questioned the use of gender-and race based data to determine damages, because
their use is inherently unfair to women and minorities.7
When the government itself chooses to use such data, we must consider not just the unfairness to
individuals but the threat of serious constitutional violations.8 Specifically, we believe that the
Fund's anticipated reliance on gender-specific and race-specific data not only perpetuates
discrimination against women and minorities, but will violate the September 11th victims' equal
protection right
under the Fifth Ammendment. See U.S. Const amend. V ("No person shall ... be
deprived of life, liberty, or property without due process of law.") Victims' rights may also be
violated
under state constitutional guarantees of equal protection. In the states in which large
deprived of life, liberty, or property,. without due process of law,"). Victims' rights may also be
violated under state constitutional guarantees of equal protection. In the states in which large
numbers of potential claimants reside, separate equal protection guarantees exist; in some cases these
are more protective than the federal constitution.9 Some of these states have equal rights
amendments, which offer additional constitutional protection against gender-based violations of
equal protection.10 Some also have constitutional guarantees of "open access" to the courts: denial
of full compensation for injuries on the basis of race or gender may violate these "remedies
clauses."11

Classifying victims of the September 11 tragedy by their gender and race for the purpose of
determining compensation is an invalid use by the government of suspect classifications that will not
withstand constitutional scrutiny. As a threshold matter, the Fund's reliance on gender and race
would undoubtedly constitute state action, bringing it within the reach of the Equal Protection
Clause. Congress established the Fund "to provide federal money to victims and their families," in
return for which the claimants must give up their right to sue airlines and other entities.12 The
Department of Justice oversees administration of the Fund, including development of and
implementation of procedures to determine claimants' eligibility and compensation.13 All aspects of
the Fund's conception and implementation are thus clearly conduct attributable to the federal
government and reached by the Equal Protection Clause.

Under equal protection analysis, the government must justify its decision to classify the victims and
claimants by their gender and race. There has been for decades a strong presumption in American
law that gender classifications favoring men or women are invalid. U.S. v. Virginia ("VMI"), 518
U.S. 515, 541-42 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). It is the government's
burden to show that its justification for gender classifications is "exceedingly persuasive." VMI, 518
U.S. at 531 (state institution's male-only admissions policy invalidated where government failed to
show "exceedingly persuasive justification" for gender-based classification). the gender-based
worklife tables are predicated upon data that captures and continues a long history of discrimination
against women, often based upon stereotypes about women's abilities and preferences. See, e.g.,
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982) (government's gender-classification
reflected and perpetuated stereotypes about the sexes' labor force participation). In using this data,
the government will rely on "overbroad generalizations about the different talents, capacities, or
preferences of males and females,"14 This will result in many women victims and their survivors
receiving lower compensation than identical situated men, and will therefore "perpetuate the legal,
social, and economic inferiority of women."15

Title VII, too, has been used to strike down the use of gender-based actuarial data as discriminatory
against women.16 Thus the Supreme Court explained in Manhart that "in forbidding employers to
discrimination against individuals because of their sex, Congress intended to strike at the entire
spectrum if disparate treatment of men and women resulting from sex stereotypes...[federal anti-
discrimination law] subjects to scrutiny and eliminates such irrational impediments to job
opportunities and enjoyment which have plagued women in the past."17 And in Norris, the Court
reiterated that sex-based classification of employees based on actuarial assumptions about longevity
violated Title VII as "flatly inconsistent" with the federal law's requirement that "employers...
treat their employees as individuals, not 'as simply components of a racial, religious, sexual, or
national class.'''18

In this light, it is highly unlikely that any plausible governmental objective in using gender-based
information-such as efficiency or accuracy-will be "exceedingly persuasive."19 This is especially
so when the Special Master has indicated that one major Fund goal is to treat claimants fairly based
on their individual and unique circumstances. Rule, at page 66274 (Fund goal to provide "just and
appropriate" compensation "in light of "individual circumstances" analyzed beyond any
"theoretically possible future income stream"). Compensating similarly situated claimants
differently solely on the basis of their gender ignores the victims' "individual circumstances" in
favor of projections of expected future earnings based in part on historic prejudices. This is
especially unjust and ironic at a time when the United States' role in advancing the equality of
women both here and abroad remains so urgent.

The equal protection argument against the Fund's use of race-based tables runs along similar lines,
and is arguably even stronger. Under federal constitutional jurisprudence, race is a "suspect
classification," reviewed under "strict scrutiny": a test that is very seldom met. See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (strict scrutiny test applies to determine
whether race-based classifications violate equal protection) ("Federal racial classifications...must
serve a compelling governmental interest, and must be narrowly tailored to further that interest").

By guaranteeing equal protection to persons of all races and ethnicities, the Constitution recognizes
that" [r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most
exacting judicial examination." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978)
(opinion of Powell,J.). See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943)
("distinctions between citizens solely because of their ancestry are by their very nature odious to a
free people whose institutions are founded upon the doctrine of equality."). The Supreme Court
makes little allowance even for "benign" racial classifications which are designed to remedy past
discrimination, see Adarand, 515 U.S. at 227; City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) (minority set asides invalid under strict scrutiny because city failed to show narrowly tailored
fit between compelling government interest and program).

Far from being benign, the use of race-based data will penalize victims of September 11 and
perpetuate a history of government-sponsored and private bias against racial minorities. Moreover,
in an increasingly racially and ethnically diverse society, efforts at categorizing the thousands of
victims accurately and fairly on the basis of perceived racial and ethnic group membership is likely
to be both inaccurate and unmanageably complex.20

The Fund may suggest that its objectives in using race-based tables are greater efficiency or
accuracy. However, this is not likely to be a "compelling" governmental objective supporting racial
classifications where the task of ascribing racial and ethnic identities to the victims is likely to be
complex and inaccurate. In any case, the goal of efficiency and accuracy can be well-met by the
Fund's consideration of non-suspect classifications, such as age, income history, and marital status,
which experts have long relied upon to assess projected future earnings. The Special Master's
hearings will give the government amply opportunity to consider claimants' "individual
circumstances" and award fair compensation without resorting to gross, overbroad generalizations
about race which seem likely to violate the constitutional guarantee of equal protection.

The Fund Has Misled The Victims And The Public About Its Planned Reliance On Gender
And Race.

the Special Master's Office has, under questioning from attorneys, journalists, and experts in the
field of tort compensation, acknowledged that claims may be assessed based in part on the gender
and race of the victim.21 Unfortunately, the government had not been candid about this possibility
with potential claimants, or the American people.

We are not aware of any part Rule or other materials made available in which the
Special Master or Department of Justice acknowledged that the government anticipates using the
victims' gender and race to determine compensation.22 to the contrary, the Rule and other
information have been quite misleading on this point. For example, the Rule states that the
methodology will be based on the claimants' "readily identifiable" traits, and names among these the
claimants' "age, prior income levels, marital status, and the number and ages of the victim's
dependents."23 No mention is made of gender or race. Similarly, the Presumed loss Calculation
Tables Before any Collateral Offsets Chart ("Chart"), which potential claimants are invited to
consult to estimate their compensation, appears to aggregate gender-based and race-based
information.24 Persons consulting the Chart will find the same list of relevant "traits" mentioned in
the Rule: age, marital status, income and number of children of the victim, but the Chart's prefatory
language strongly ---and misleadingly-- implies that women and men will be treated alike, by stating
that the calculation of compensation "assumes that each person would have worked a number of
years equal to the average expected worklife across the nation for males and females of the same age
as the victim." See Chart, page 2. 25

Because of the lack of clarity and condor from the government on this important issue, we are
concerned that potential claimants remain unaware that the gender and race of the September 11
victims threatens to reduce the compensation available for women and members of racial minorities
and violate their constitutional rights.

The Fund Will Discriminate Against Women Victims In its Valuation Of Unpaid Services.

According to the Rule, presumed economic loss for victims does not take into consideration the true
economic value of household services performed by the victims of the September 11th tragedy. The
unpaid household services at stake may include such tasks as housecleaning, cooking, car-pooling
and lawn-mowing; compensation for unpaid services must include care-giving, such as assisting
children with school work or helping an older relative, as well. The Rule compensates claimants
with a lump sum for non-economic components of "replacement services loss."26 As it relates to the
valuation of economic losses, however, the Rule only compensates replacement services for those
victims who had no prior earnings or worked only part time outside the home.27 Yet full time
workers, too, perform valuable household services, and failure to fully compensate those services
will fall hardest on women victims and their survivors, because working women typically perform a
greater amount of these services than men.

It is accepted practice for courts in New York and beyond to compensate victims, including those
who work full-time, for the value of replacement services for their household work.28 Moreover,
Congress contemplated economic losses to be construed by the Fund with reference to state law.29
In New York State wrongful death actions, for example, plaintiffs may recover all "fair and just
compensation for the pecuniary injuries resulting from the decedent's death."30 New York courts
have interpreted "pecuniary injuries"--or economic losses-- to include the loss of household services,
and have not carved out as exception for full time workers.31 The federal courts have also
recognized that the loss of a working woman's household services are recoverable, economic
losses.32

While under-compensating all full time workers, we are especially concerned that the Rule's
calculations will have a disproportionately negative impact on women victims, because women
continue to perform more household services than men, though each case must be viewed
individually. Thus, one study has shown that married women working full time with children under
the age of 18 perform approximately 35.6 hours of household services per week, as compared to
26.9 hours performed by men. 33 Therefore, women victims and their survivors are likely to be
disproportionately harmed by the Rule's treatment of economic losses. By ignoring the extent and
worth of unpaid, household services performed by victims who worked full time when calculating
economic losses, the Fund fails to capture value of these "second shift" contributions.34


Conclusion

We appreciate the enormity of the task facing the Special Master, especially as emotions about the
process run high. The terrorist attacks on September 11th were not simply "torts" and the September
11 Victim Compensation Fund is not merely a fund to compensate victims of the tragedy. Even in
this climate of pitched emotions, basic principles of fairness - some of which are constitutional in
scope - must be honored in administering the Fund. Ignoring these principles threatens the rights of
women and minorities, and perpetuates the long history of government and private discrimination
against these groups.

Sincerely yours,

Comment By:
NOW Legal Defense and Education Fund
NEW YORK, NY


1 Created pursuant to Title IV of the Air Transportation Safety and System Stabilization Act, 49
U.S.C. § 40101 (2001).
2 See September 11th Victim Compensation Fund of 2001; 66 Fed. Reg. 66,273, at 66,274
(Dec. 21,2001) (to be codified at 28 C.F.R. pt. 104) (Rule")
3 See e.g., Stephanic Saul, Less for Women? Work Life Statistics May Limit Sept. 11 Fund Payouts
to Victims, Newsday, Jan. 4, 2002 (Fund plans to use gender-based worklife statistics). We understand that the Fund plans to use statistics identical to or based in part or whole upon data presented in the Bureau of Labor Statistics' Worklife Estimates: Effects of Race and Education (bulletin 2254) (Feb. 1986) (gender-and race-based estimates of working life and labor force behavior, derived from data through 1979-80) (available at http://www.bls.gov/cps/cpsb2254.pdf).
Communication with Kurt V. Krueger, Senior Economist, John O. Ward & Assoc., Inc. (Jan. 17, 2002).
4 Rule, at 66275
5 See U.S. Department of Labor, Chapter 2, Futurework: Trends and Challenges for Work in the 21st
Century (1999) (available at http://www.dol.gov/asp/futurework/report.htm) (last visited January 17, 2002) (analyzing
wage gap between women and men and between white men and minority men; finding that over 40 percent of the pay gap
between men and women is generally "interpreted as discrimination'; a "glass ceiling" blocks advancement of both minority
men and women).
6 Among these are federal anti-discrimination measures such as the Equal Pay Act of 1963, which
amends the Fair Labor Standards Act, Title VII of the 1964 Civil Rights Act, and Executive Order 11246.
7 See, e.g., Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427, 457 (D.D.C. 1991), rev'd on
other grounds, 28 F.3d
120 (D.C. Cir. 1994) ("[I]t would be inappropriate to incorporate current discrimination resulting in
wage differences
between the sexes or races or the potential for any future such discrimination into a calculation for
damages resulting
from lost wages."); Martha Chamallas, The Architecture of Bias: Deep Structures in Tort law, 146 U.
Pa. L. Rev. 463
(1998) (devaluation of female and minority lives in tort compensation); Note and Comment: Toward
Gender-Neutral
Data For Adjudicating Lost Future Earning Damages: An Evidentiary Perspective, 72 Chi-Kent, L.
Rev. 299 (1996);
Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tori
Litigation: A
Constitutional Argument, 63 Fordham L. Rev. 73 (1994).
8 See generally on the constitutional problems with use of gender-and race-based data to calculate
damages Chamallas,
Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation, supra
note 7.
9 see, e.g., Aliessa v. Novello, 96 N.Y.2d 418, 754 N.E.2d 1085 (N.Y.2001) (state statute denying
permanent resident
legal aliens Medicaid benefits unconstitutional in violation of federal and New York state equal
protection clauses);
Tomarchio v. Twnshp. of Greenwich, 379 A.2d 848, 851 (N.J. 1977) (under state equal protection
analysis, gender-based
classifications found suspect when state required proof of dependency requirements of widowers, not
widows); Planned
Parenthood v. Farmer, 165 N.J. 609, 630 (2000) (state equal protection analysis adopted differing
from federal analysis
and leading to broader protection of fundamental rights).
10 Connecticut, for example, has adopted an ERA and applies strict scrutiny to state-based equal
protection claims. See
Conn. Const. art. I, § 20; Page v. Welfare Comm'r, 365 A.2d 1118, 1122 (Conn. 1976) (strict scrutiny
applied to
administrative, gender-based classification distinguishing between husbands and wives in computing
duty to support
parents).
11 See Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in tort
Litigation, supra
note 7, at 104 n.218 (discussing additional state constitutional bases for challenging gender- and race-
based tables in tort
cases); see also, e.g., CONN, CONST. Art 1, § 10 ("All courts shall be open, and every person, for an
injury done to him
in his person, property or reputation, shall have remedy by due course of law, and right and justice
administered....").
12 See September 11 Victim Compensation Fund of 2001, 49 U.S.C. § 40101 (2001), at tit, 4, § 403
(purpose of Fund).
13 See id. at tit. 4, § 404 (administration of Fund).
14 VMI, 518 U.S. at 533.
15 ID., 518 U.S. at 534.
16 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides that "it shall be an
unlawful employment
practice... to discriminate against any individual... because of...sex." 42 U.S.C. § 2000e-2(a)(1). See Los
Angeles
Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n, 13 (1978) (internal citation omitted); id.
at 708-709 (holding
that a pension plan requirement that men and women make unequal contributions to the plan, for the
asserted reason that
women live longer than male as a class, violated Title VII, and rejecting employer's argument that
requiring female
employees to make larger pension contributions than male employees is not discriminatory because,
"unless women as a
class are assessed an extra charge, they will be subsidized, to some extent, by the class of male
employees").
17 See Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted).
18 See Arizona Governing Comm'ee v. Norris, 463 U.S. 1073, 1081 (1983) (quoting Manhart, 435
U.S. at 708).
19 VMI, 518 U.S. at 531.
20 See generally U.S. Census Bureau, Overview of Race and Hispanic Origin (2000), available at
htt://www.census.gov/prod/2001pubs/c2kbr01-1.pdf) (discussing complexity of making accurate
classifications of race and ethnicity in the United States).
21 See Saul, Less for Women? Work Life Statistics May Limit Sept. 11 Fund Payouts to Victims,
supra note 3, quoting
Michael Rozen, deputy Special Master: "When we are presented with the individual facts, we will
certainly take into
account differing worklife expectancies between men and women." The Newsday article noted that dr.
John Ward,
among other economists, had raised question of whether gender-based worklife data would be used,
and fact that Fund
had not released gender-based tables to outline how compensation process would work. Id.
22 On January 22, 2002, a document titled, "Victim Compensation Fund, Frequently Asked Questions,
Volume I,
Updated January 22, 2002" was posted on the Fund's website at
http://www.usdoj.gov/victimcompensation/adv_bene_faq.pdf. This document appears to reference the
anticipated use of
gender, at page 8, in a chart indicating worklife for men and women. There is no discussion in this
document of which
we are aware about any intended use of race or ethnicity. Given that the Chart and other materials have
made no
reference to either gender or race, we remain concerned that the victims and the public are not fully
informed about how-
-and more importantly, why--the gender and race of the victims will be used to determine Fund
compensation.
23 Rule, at page 66278.
24 The chart and accompanying pages of explanatory text arc available at
http://www.usdoj.gov/victimcompensation//loss_calc.html (last visited January 17, 2002).
25 In addition the Department of Justice's website refers the public and potential Fund claimants to a
website run by a
volunteer legal organization, Trial Lawyers Care, Inc, ("TLC"). TLC'S WEBSITE Also makes no
mention of the fact that
claimants may be divided by gender and race/ethnicity. TLC informs the public that "The Special
Master calculates
presumed economic and noneconomic losses based on each claimant's circumstances: including factors
of
age, prior income levels, marital status, and the number and ages of the victim's dependents." See Trial
Lawyers Care,
Inc., "FAQ," available at http://www.911lawhelp.org/info/faq.htm (information provided in answer to
question, "Before
I apply for compensation from the Fund, I'd like to get an idea of what I might receive. Is there any
information on
this?") (last visited January 16,2002). TLC submitted it's own comments and concerns about the Rule;
these are
available at http://911lawhelp.org/info/news/dec20.htm (last visited January 22, 2002).
26 Rule, at pages 66,287 (compensation for noneconomic losses, including replacement services).
27 Rule, at page 66,286 (compensation for economic losses, including replacement services).
28 See, e.g., Cramer v. Kuhns, 213 A.D. 2d 131, 139 (N.Y. 1995) ("We have long considered an
injured plaintiff's loss of
household services to be a quantitative economic loss separate and apart from pain and suffering.") ;
DeLong v. Cry. of
Erir, 89 A.D. 2d 376 (N.Y. 1982), aff'd 60 N.Y.2d 296 (1983) ("It has long been recognized that
pecuniary advantage
results as well from parental nurture and care, from physical, moral and intellectual training, and that the
loss of those
benefits may be considered within the calculation of "pecuniary injury") (citations omitted).
29 See September 11 Victim Compensation Fund of 2001, 49 U.S.C. § 40101 (2001), AT TIT. 4
§ 402(5) (Definition Of
"Economic Loss")
30 N.Y. Est. POWERS & TRUSTS LAW § 5-4.3(a) (McKinney 2001)
31 See, e.g., Shue v. Red Creek Central Sch. Dist., 266 A.D. 2d 899 (N.Y. 1999) (damages awarded
for loss of decedent's
earnings, household services and parental guidance).
32 See, e.g., Winbourne v. Eastern Airlines, 758 F.2d 1016 (5th Cir. 1984) (decedent wife's
household services and salary
as teacher together comprised economic losses).
33 See John Ward Economics, John Ward Economics Time-use Analysis (unpublished manuscript, on
file at NOW Legal
Defense).
34 See generally Arlie Hochschild, The Second Shift: Working Parents and the Revolution at Home
(1989) (working women's unpaid household services and caregiving).

2002-01-22