CASE PREVIEW

Court to consider emotional distress damages under anti-discrimination laws

Cummings v. Premier Rehab Keller, P.L.L.C., which the Supreme Court will hear on Tuesday, is about the types of remedies that plaintiffs may recover when they prove violations of certain federal anti-discrimination laws — in particular, whether such plaintiffs may recover damages for emotional distress. The facts of Cummings involve emotional distress damages for discrimination based on disability under the Rehabilitation Act of 1973 and the Affordable Care Act. From a practical perspective, the court’s resolution of Cummings might well affect the availability of emotional distress damages under additional federal anti-discrimination laws — including Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded education programs. Further, Cummings raises more general questions about statutory interpretation and the scope of judicial remedies.

Jane Cummings has been deaf from birth and is legally blind. Cummings primarily communicates in American Sign Language. In 2016, she sought physical therapy services for back pain from respondent Premier Rehab, a company that operates rehabilitation facilities in Texas and receives federal funds. Cummings asked Premier to provide her with an ASL interpreter. Premier declined, and Cummings went to another physical therapy provider, where she received care that she alleges was unsatisfactory.

In Cummings’ view, Premier’s failure to provide her with an ASL interpreter violated legal prohibitions on disability-based discrimination, including Section 504 of the Rehabilitation Act (codified at 29 U.S.C. § 794) and Section 1557 of the ACA (codified at 42 U.S.C. § 18116).  Cummings accordingly sued Premier, seeking (among other remedies) damages for emotional distress. The district court dismissed Cummings’ case, and the U.S. Court of Appeals for the 5th Circuit affirmed. The 5th Circuit, disagreeing with a 2007 case from the U.S. Court of Appeals for the 11th Circuit, held that emotional distress damages are not available under the Rehabilitation Act or the ACA. Cummings appealed to the Supreme Court, which last July agreed to weigh in.

By way of background, the Rehabilitation Act (in Section 504) prohibits recipients of federal funds from discriminating based on disability. The act also makes available to “any person aggrieved” by a violation of Section 504 the “remedies, procedures, and rights” in Title VI of the Civil Rights Act of 1964. (Title VI of the Civil Rights Act prohibits recipients of federal funding from discriminating based on race or national origin.) The ACA (in Section 1557) bars federally funded health care programs from discriminating in violation of certain civil rights statutes, including the Rehabilitation Act. Moreover, the ACA states that the enforcement mechanisms available under Title VI apply to violations of Section 1557. So both the Rehabilitation Act and the ACA — the provisions that Cummings invoked — “piggyback” on the remedies available under Title VI.  The same is true, in effect, of other antidiscrimination statutes, such as Title IX.

Which remedies, then, does Title VI make available to private plaintiffs like Cummings? Congress often spells out available remedies in statutory “private rights of action” authorizing private plaintiffs to sue. But Congress did not include an explicit private right of action when it passed Title VI. Nonetheless, in the 1979 case Cannon v. University of Chicago, the Supreme Court interpreted Title VI to contain an “implied” right of action for private plaintiffs to enforce its anti-discrimination guarantees. To be sure, the court has since disapproved of the practice of judicially implying private rights of action instead of relying on express congressional text. Yet in the case of Title VI’s implied private right of action, Congress (the court has recognized) “ratified Cannon’s holding” through 1986 legislation. 

All in all, private parties have a right of action to enforce Title VI’s anti-discrimination guarantees. And because Section 504 of the Rehabilitation Act and Section 1557 of the ACA piggyback on the enforcement mechanisms in Title VI, Cummings likewise had a right of action to sue Premier under those statutes.

The question then arises which remedies Cummings could seek when suing under the Rehabilitation Act or the ACA. Here the Supreme Court’s case law on “spending clause” legislation comes into play. Congress passed Title VI and other statutes incorporating its enforcement mechanisms — including Section 504 of the Rehabilitation Act and Section 1557 of the ACA — pursuant to its “spending clause” power in Article I of the Constitution. Spending clause legislation, the court has explained, is like a contract: In return for federal funds, recipients agree to comply with Congress’ conditions. In the 2002 case Barnes v. Gorman, the court applied the contract analogy to the issue of which remedies are appropriate when private parties sue for violations of spending clause legislation. A remedy is warranted for such a violation, the court indicated, only if the funding recipient is on notice that it exposes itself to the remedy by accepting federal funding. And funding recipients are on notice that they are subject to those remedies traditionally available in suits for breach of contract.

Thus, Cummings presents the issue of whether damages for emotional distress in Rehabilitation Act and ACA suits are the type of remedy on which federal-funding recipients such as Premier were on notice when they accepted federal funding. Cummings would have the court answer “yes.” She — and the United States government, which filed a brief in support of her and will be presenting argument on Tuesday — contend as follows. The court held, in Barnes and in the 1992 case Franklin v. Gwinnett County Public Schools, that plaintiffs may secure compensatory damages (that is, damages to make up for past harm) when suing under the private right of action to enforce Title VI and related statutes. Emotional distress damages, Cummings urges, are a traditional form of compensatory damages for breaches of contracts that protect non-pecuniary interests. Anti-discrimination statutes safeguard such non-pecuniary interests, as victims of discrimination frequently suffer emotional and dignitary harm. Therefore, Premier was on notice when it accepted federal funds that violation of the anti-discrimination provisions Cummings invoked could lead to damages for emotional distress.

Cummings also appeals to the Supreme Court’s “presumption” from the 1946 case Bell v. Hood that “where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Cummings has alleged unlawful discrimination and has a right of action to challenge that discrimination. Consequently, she avers, courts should not be limited in their ability to “make good the wrong done” — that is, to compensate her for harm she has suffered, including emotional harm.   

Premier, by contrast, takes the position that federal funding recipients are not properly on notice of damages liability for emotional distress under the Rehabilitation Act and the ACA. Premier observes that damages for emotional distress are generally unavailable for breach of contract, and it argues that a narrow exception for “personal contracts” does not suffice to put recipients of federal funds on the requisite “clear notice” of damages liability for emotional distress. The company further contends that the Bell v. Hood presumption cannot carry the day in the context of spending clause legislation, where the requirement that funding recipients have adequate notice of congressional conditions limits the scope of remedies.

Premier additionally points to the “implied nature” of Cummings’ rights of action under the Rehabilitation Act and the ACA. Because Congress did not create an express right of action to enforce those provisions, Congress had no occasion to define the scope of available remedies. As a result, Premier indicates, congressional silence as to the scope of remedies should not be read to authorize courts to provide any remedy that plaintiffs claim is needed to compensate for the harm caused by the legal violation. Premier notes that in other federal anti-discrimination statutes such as Title VII of the Civil Rights Act, Congress conferred an express private right of action and capped damages. To hold in Cummings’ favor, Premier warns, would be to permit remedies for violation of the Rehabilitation Act and the ACA that are more expansive than those applicable to statutes that explicitly contain a private right of action and specific remedies.

Beyond their disputes about how to interpret spending clause legislation and the Bell v. Hood presumption, the parties spar over the practical effects of ruling in Cummings’ favor. Cummings argues that emotional distress damages are an essential form of redress for plaintiffs who may not be able to demonstrate pecuniary harm resulting from discrimination, such as many victims of sexual and racial harassment. To Premier, however, the concern that disallowing emotional distress damages for Cummings would deny a remedy to numerous victims of discrimination is overstated: State tort law often furnishes remedies (such as suits for intentional infliction of emotional distress), and the federal government could cut off funding to discriminatory entities. On the flip side, Premier predicts, ruling in Cummings’ favor would expose federal funding recipients to significant liability for unverifiable harms. Cummings counters that emotional distress damages are, in fact, measurable and have not been exorbitant.  

At oral argument, it will be instructive to see whether the justices approach the case as one implicating the Supreme Court’s skepticism toward implied private rights of action, or whether they will deem Congress’ “ratification” of the rights of action under which Cummings is suing to reduce concerns about the scope of available remedies. Oral argument may also shed light on how the justices conceive of the relationship between discrimination and non-pecuniary harms such as humiliation and emotional distress.