OPINION ANALYSIS

Court rules against plaintiff seeking emotional distress damages for discrimination

Update (May 2, 9:05 a.m.): This article has been expanded with additional analysis.

The Supreme Court ruled 6-3 on Thursday against a plaintiff seeking emotional distress damages for violation of certain federal anti-discrimination laws.

Jane Cummings is deaf and legally blind, and she communicates primarily in American Sign Language. She sought physical therapy services from Premier Rehab Keller, a company that operates rehabilitation facilities in Texas and receives federal funds. She asked Premier Rehab to provide an ASL interpreter, but Premier Rehab declined. Cummings then sued Premier Rehab, alleging discrimination based on disability in violation of the federal Rehabilitation Act (Section 504) and Affordable Care Act (Section 1557). Cummings stated that she had suffered humiliation and emotional distress as a result of Premier Rehab’s actions. The question facing the court in Cummings v. Premier Rehab Keller PLLC was whether damages for emotional harm are available under the anti-discrimination laws Cummings invoked.

By way of background, Congress has enacted four statutes — including the Rehabilitation Act and the ACA — prohibiting recipients of federal funds from discriminating based on protected characteristics, including race, sex, disability, and age. Congress’ authority to enact these provisions derives from the Constitution’s spending clause. The Supreme Court has held 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.” According to the court’s spending clause jurisprudence, private plaintiffs may secure a given judicial remedy for the violation of spending clause statutes only if the defendant that received federal funds is on notice that it exposes itself to that remedy by accepting the funds. But how to determine whether a defendant has such notice when the applicable statutes are silent as to available remedies, as in Cummings’ case? Drawing on the contract analogy, the court has concluded that funding recipients are on notice that they are subject to those remedies traditionally available in suits for breach of contract.

Applying the contract-law inquiry, the court ruled that Cummings could not recover emotional distress damages. In an opinion by Chief Justice Roberts (joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), the court stated that emotional distress damages are not traditionally available in suits for breach of contract, and so are not recoverable under the spending clause anti-discrimination statutes in Cummings’ suit. 

Justice Stephen Breyer dissented, joined by Justices Sonia Sotomayor and Elena Kagan. Breyer argued that emotional distress damages were traditionally available when a breach of contract was particularly likely to result in serious emotional disturbance, and that invidious discrimination is especially likely to cause such a disturbance. Quoting an opinion of Justice Arthur Goldberg (for whom Breyer clerked) in a 1964 civil rights case, Breyer wrote that Congress’ anti-discrimination laws seek “the vindication of human dignity and not mere economics.”  

In response, the Cummings majority (drawing on the court’s 2002 case Barnes v. Gorman) indicated that funding recipients are on notice that they will be subject to the usual contract remedies in private suits — not to unusual remedies available only in a narrow subset of breach-of-contract cases. Moreover, the majority stated that American jurisdictions have not adopted a consensus rule permitting emotional distress damages whenever a breach of contract is particularly likely to cause emotional harm. 

An intriguing short concurrence by Kavanaugh, joined by Gorsuch, appealed to separation-of-powers concerns that may underlie the court’s reluctance to endorse broader damages remedies in discrimination suits based on spending clause legislation. Kavanaugh observed that both the majority and the dissent had applied the contract-law analogy “ably,” but that the analogy is “an imperfect way” to determine the scope of remedies. For Kavanaugh, the more powerful reason not to permit emotional distress damages in Cummings was that Congress, not the court, should be in charge of expanding remedies for “implied” private causes of action — that is, authorizations to private persons to sue that are not explicitly stated in statutory text. 

There is some ambiguity about whether Cummings indeed relied on wholly “implied” causes of action, as distinct from causes of action that Congress later “ratified.” Nonetheless, Congress’ silence about the precise remedies available under the Rehabilitation Act and the ACA figured into the majority’s reasoning in addition to featuring in Kavanaugh’s concurrence. Roberts, writing for the majority, expressed the concern that Cummings’ position about the scope of remedies “risks arrogating legislative power.”    

What is the upshot of the court’s decision in Cummings? Unless Congress amends the relevant statutes, plaintiffs will be unable to recover emotional distress damages when alleging discrimination under the Rehabilitation Act, the ACA, and quite likely two other spending clause statutes: Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination) and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination). However, emotional distress damages remain available under other anti-discrimination statutes in which Congress has spoken more explicitly to either the remedy or the cause of action, notably Title VII of the Civil Rights Act and 42 U.S.C. § 1983.