By Lisa Soronen
In Cummings v. Premier Rehab Keller, the U.S. Supreme Court will decide whether people who are discriminated against in violation of five federal statutes may sue for emotional distress damages.
- Title VI of the Civil Rights Act of 1964 prohibits “any program or activity receiving Federal financial assistance” from discriminating based on “race, color, or national origin.”
- Title IX of the Education Amendments Act of 1972 prohibits sex discrimination in federally funded education programs. Section 504 of the Rehabilitation Act prohibits funding recipients from discriminating based on disability.
- Title II of the Americans with Disabilities Act prohibits disability discrimination by state and local governments.
- The Affordable Care Act prohibits federally funded health programs from discriminating based on race, color, national origin, sex, or disability.
All these statutes expressly incorporate the private right of action available to victims of discrimination under Title VI, meaning individuals may sue to enforce them.
The question the Supreme Court will decide in this case is whether an individual bringing a private right of action under any of these statutes may recover emotional distress damages.
Jane Cummings has been deaf since birth and is legally blind. She communicates mostly through American Sign Language (ASL). She contacted Premier, which offers physical therapy services, to treat her chronic back pain. She repeatedly requested that Premier provide an ASL interpreter, but it refused. She sued Premier under the Rehabilitation Act and the ACA for disability discrimination and sought emotional distress damages.
The 5th Circuit held that emotional distress damages aren’t available under these statutes.
The Rehabilitation Act and the ACA are Spending Clause legislation. According to the 5th Circuit, the Supreme Court has “repeatedly” likened Spending Clause legislation to contract law—“in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”
In Barnes v. Gorman (2002), the Supreme Court explained compensatory damages are available under Spending Clause legislation because federal-funding recipients are “on notice” that accepting such funds exposes them to liability for monetary damages under general contract law. In Barnes, the Supreme Court also held that punitive damages aren’t available under Spending Clause legislation because they aren’t generally available for breach of contract. So, federal funding recipients aren’t “on notice” that they could be liable for punitive damages.
According to the 5th Circuit, emotional distress damages, like punitive damages are “traditionally unavailable in breach-of-contract actions.” So, the court held, federal-funding recipients aren’t on notice of them and can’t be held liable for them.
Any and all of the statutes at issue in this case may apply to states, local governments, and school districts. It would be advantageous to these entities if claims for emotional distress damages unavailable under these statutes.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.