By Lisa Soronen
In Cummings v. Premier Rehab Keller the State and Local Legal Center (SLLC) filed a Supreme Court amicus brief arguing that emotional distress damages aren’t available under the Rehabilitation Act and the Affordable Care Act.
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 VI has been interpreted to create a private right of action allowing victims of discrimination to sue for money damages including “compensatory damages.”
Congress has expressly incorporated Title VI’s remedies into other federal anti-discrimination laws including: Section 504 of the Rehabilitation Act (prohibiting funding recipients from discriminating based on disability); the Affordable Care Act (prohibiting federally funded health programs from discriminating based on race, color, national origin, sex, age, or disability); Title IX of the Education Amendments Act of 1972 (prohibiting sex discrimination in federally funded education programs); and Title II of the Americans with Disabilities Act (prohibiting disability discrimination by state and local governments).
The question the Supreme Court will decide in this case is whether an individual bringing a private right of action under the Rehabilitation Act and the Affordable Care Act may recover emotional distress damages. How the Court answers this question will determine whether such damages are available under the other statutes listed above which also incorporate Title VI’s remedies.
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 Fifth 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 Fifth 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 Fifth 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.
The SLLC amicus brief argues that numerous legal and policy reasons indicate emotional distress damages are unavailable under the Rehabilitation Act and the ACA. For example, “[e]xposure to uncapped emotional damages would create extreme risk for state and local governments. In contrast to traditional economic damages typically available for breach of contract, emotional distress damages by their nature are idiosyncratic, subjective, hard to measure, and subject to abuse because they depend on the feelings of the person who experiences them. They also can be very large.” “Faced with uncapped exposure to emotional distress damages, state and local governments may decide they need to reallocate local funds, raise taxes, or refuse the federal funding.”
Richard A. Simpson and Elizabeth E. Fisher of Wiley Rein and F. Andrew Hessick of UNC School of Law wrote the SLLC amicus brief which the following organizations joined: National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International Municipal Lawyers Association, and National Public Labor Employer Labor Relations Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.