Introduction
On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..
Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate effectively in writing. On October 27, 2016, Ms. Cummings contacted Premier Rehab Keller (Premier), a physical therapy provider that receives federal funds, for physical therapy treatment for her chronic back pain. Ms. Cummings requested an ASL interpreter for her visit, which Premier refused to provide. Instead, Premier suggested Ms. Cummings provide an ASL interpreter herself, or attempt to communicate through written notes, lip reading, and gesturing—all of which were ineffective for Ms. Cummings because of her visual impairment. She subsequently visited another physical therapy provider but “received unsatisfactory care.” Ms. Cummings again, on two separate occasions, contacted the defendant for an appointment and an interpreter. Premier again denied her request. In response to these denials, Ms. Cummings exercised her federally protected rights against discrimination by suing Premier for the emotional distress caused by her experience at its facility. To her dismay, she was denied recovery of damages for her emotional distress.
Emotional distress damages have been an important form of relief for individuals with disabilities who have suffered discrimination. As Justice Breyer noted in his dissenting opinion in Cummings, “Often, emotional injury is the primary (sometimes the only) harm caused by discrimination.” Further, it is a rather foreseeable consequence of disability discrimination that the individual will be emotionally harmed. The Supreme Court’s holding in Cummings opens the door for the complete annihilation of emotional distress damages—as recent district court and court of appeals decisions have shown—in future claims brought under Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504—the statute directly addressed in Cummings—and Title II are similar statutes in that they both aim to prevent discrimination against people with disabilities. Although the Americans with Disabilities Act (ADA) references the Rehabilitation Act in terms of remedies, these two statutes should be analyzed differently for the purposes of emotional distress damages.
While Cummings’s holding is clear—emotional distress damages are not recoverable under Spending Clause legislation like the Rehabilitation Act because federal fund recipients are not on notice that they would be liable for these types of damages—what is far from certain is the effect it will have on ADA Title II claims. In response to this lack of clarity, this Note takes the position that the Cummings decision should not be read so broadly as to implicate claims under Title II of the ADA because the constitutional basis for this statute and the rights therein differ from that of section 504 of the Rehabilitation Act and Title VI of the Civil Right Act of 1964 (Title VI). Additionally, significant barriers are already present for claimants attempting to recover compensatory damages in Title II ADA cases, and further barriers should not be placed on Title II because it would frustrate the purpose of the statute. As will be explained in further detail below, Title II’s remedial provision references and incorporates the rights and remedies of section 504. In turn, section 504’s remedial provision, which is supposed to provide the remedies available to Title II claimants, references and incorporates the remedies available under Title VI.
Part I of this Note will first provide an overview of Title II of the ADA and section 504 of the Rehabilitation Act, as well as their respective remedial provisions. It will explore the similarities and differences between Title II and section 504, and the considerable limitations that exist for recovering compensatory damages under these statutes. Additionally, it will discuss why any concern about applying emotional distress damages, such as the difficulty of determining the value of a plaintiff’s claim, is unfounded. Next, it will provide background information on the Spending Clause—as section 504 and Title VI of the Civil Rights Act are pieces of Spending Clause legislation—and the Court-developed “on notice” requirement. Lastly, Part I will provide an in-depth exploration of the Cummings decision and how the Court reached its conclusion.
Part II will then discuss pre-Cummings decisions and how courts have treated emotional distress damages under Title II, section 504, and Title VI, as well as Cummings’s implications for Title II claims. It will argue that courts have generally allowed emotional distress damages under section 504 and Title II and should continue to do so. Moreover, it will call attention to the significant errors made by the Cummings Court, such as the disregard of binding precedent and congressional intent. Furthermore, it will go on to analyze why Title II should not be affected by Cummings by pointing out that Title II was enacted by Congress under the Fourteenth Amendment and the Commerce Clause powers, and concludes that the “on notice” requirement cannot apply to Title II. Finally, Part II will highlight specific scholarship that, using similar rationales, argues for abolishing the intentional discrimination standard, which would justify allowing emotional distress damages for Title II violations.