Emotional Distress Damages: How Far Does Cummings Reach?
Earlier this year, the United States Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C. that emotional distress damages are not recoverable in private actions brought to enforce Spending Clause statutes. After acknowledging that “Congress has broad power under the Spending Clause of the Constitution to set terms on which it disburses federal funds”—including by conditioning an offer of federal funds on a recipient’s promise not to discriminate—the Court explained that Spending Clause legislation “is much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.” The Court then held that plaintiffs cannot recover emotional distress damages for violations of Spending Clause statutes because emotional distress damages are not generally compensable in contract law, and because funding recipients lacked “clear notice” that accepting federal funds would subject them to emotional distress damages in private actions brought to enforce Spending Clause statutes.
As explained in Cummings, Congress has utilized its spending power to enact four anti-discrimination statutes: (1) Title VI of the Civil Rights Act of 1964, which prohibits recipients from discriminating on the basis of race, color, and national origin in federally funded programs and activities; (2) Title IX of the Education Amendments of 1972, which similarly prohibits recipients from discriminating on the basis of sex; (3) the Rehabilitation Act, which prohibits recipients from discriminating on the basis of disability; and (4) the Affordable Care Act, which prohibits healthcare entities receiving federal funds from discriminating on the basis of any of the foregoing protected characteristics, as well as age.
But the Cummings decision has also raised an interesting issue with respect to Title II of the Americans with Disabilities Act, which was not itself enacted pursuant to Congress’s spending power. When Congress incorporated a private right of action into Title II of the ADA, it specified that “[t]he remedies, procedures, and rights set forth” in the Rehabilitation Act “shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination” under Title II of the ADA. 42 U.S.C. § 12133. This language begs the question: does Cummings prohibit plaintiffs from recovering emotional distress damages under Title II of the ADA?
Several district courts to consider the issue have concluded that the answer is “yes,” holding: “Because the Rehabilitation Act does not allow [emotional distress damages], neither does the ADA.” M.D. v. Nebraska, 2022 WL 4540390, *1 (D. Neb. Sept. 28, 2022). The rationale provided by these courts is quite simple: because the ADA expressly incorporates Section 504’s rights and remedies, “if a certain category of damages is not available under Section 504, it is not available under Title II [of the ADA] either.” Montgomery v. Dist. of Columbia, 2022 WL 1618741, *24 (D.D.C. May 23, 2022); see also, e.g., Hill v. SRS Distrib. Inc., 2022 WL 3099649, *5 (D. Ariz. Aug. 4, 2022); Faller v. Two Bridges Regional Jail, 2022 WL 3017337, *4 n.8 (D. Me. July 29, 2022); Gillette v. Oregon, 2022 WL 2819057, *7 n.5 (D. Ore. July 19, 2022).
This area of the law is rapidly developing. Stay tuned as we continue to monitor the application of Cummings in both Spending Clause and ADA cases.