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The Supreme Court Ruling on Emotional Distress Under Discrimination Statute and Possible Effects on Title IX Cases

It’s been more than a year since the U.S. Supreme Court ruled in Cummings v. Premier Rehab Keller P.L.L.C. that victims of intentional discrimination on the basis of a disability cannot recover damages for emotional pain and suffering from entities that receive federal funding. The holding effectively bars the recovery of emotional distress damages under Title IV, Title IX, the Rehabilitation Act, and the ACA, even though the plaintiff’s claims in the case directly implicated only the Rehabilitation Act and the ACA. 

Time has not begun to heal the wounds of those who feel the injustice of this decision. The National Council on Disability and others have analyzed what this ruling means and proposed possible avenues of reform. 

What Happened in the Case

The plaintiff, Jane Cummings, had asked the defendant, Premier Rehab Keller, to provide an American Sign Language interpreter during her physical therapy sessions at Premier. Cummings is deaf and legally blind and was most comfortable communicating through an interpreter. However, Premier refused to provide one, insisting that Cummings would be able to communicate through other means.

She filed a lawsuit alleging that the failure to provide an interpreter constituted discrimination that violated the Rehabilitation Act of 1973 and the Affordable Care Act. These statutes, like Title IX and many other federal laws, apply to entities that receive federal funding. In this case, federal financial assistance came through reimbursement payments through Medicare and Medicaid.

In the trial, the judge determined that the injuries suffered by Cummings as a result of Premier’s refusal to provide an interpreter were purely emotional rather than physical. Then the court held that the federal statutes did not provide recovery for emotional damages in a private lawsuit. The Fifth Circuit affirmed this ruling, and eventually so did the U.S. Supreme Court, holding specifically that “[e]motional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act.”

Concerns for Victims of Intentional Discrimination

The National Council on Disability expressed concern about the implications for individuals with disabilities who have been subjected to intentional discrimination. In a letter to the U.S. President, they observed that ‘[e]ntities such as public and private colleges and universities, hospitals, group homes, physical therapist offices, and others who receive FFA, including federal grants, loans, or other forms of FFA will no longer need to remedy intentional discrimination based on disability when the resulting harm is anxiety, stress, depression, marital strain, humiliation, or other similar emotional pain.” Instead, the only remedy available under federal laws is compensation for purely economic losses such as medical bills.

The Council points out that individuals who experience discrimination on the basis of a disability suffer emotional distress rather than an economic loss in most situations outside the context of employment. This decision requires these individuals to rely on state laws for remedies, and state laws do not always provide remedies. The Council called for legislation to allow individuals with disabilities to seek recovery for emotional damage when they suffer disability-based discrimination. That call to action seems to indicate that they do not see a clear way to overcome the legal foundation on which the Cummings decision rests.

Laws are Silent on the Subject of Emotional Distress Damages

The federal laws at issue in the Cummings case do not specify whether or not damages for emotional distress are available in a private lawsuit Emotional distress damages provide compensation for individuals who suffer emotional harm caused by unlawful conduct.

When the lower courts in this case ruled that emotional distress damages do not apply in private lawsuits brought under the federal statutes, the courts used common law contract doctrine to interpret the statutes and reach the conclusion that the statutes do not permit this remedy. The justification for the reliance on contract law is that the legislation was based on the Spending Clause of the Constitution. The financial assistance from the federal government is viewed as consideration for the recipient organization’s agreement to comply with federal requirements. The Court reasons that recipients should have clear notice of those requirements, so if there is not clear notice in the text of a statute, the recipient would not have notice that it would be liable for damages not traditionally available for breach of contract under common law. However, dissenting justices noted that traditional contract law provided damages for emotional distress if a breach of contract was “likely to result in serious emotional disturbance” and that therefore, victims of intentional violations of the discrimination statutes should be able to receive damages for emotional suffering.

Implications for Title IX

The Supreme Court’s discussion in Cummings is founded on the legislation and judicial precedent that support the remedial schemes of not only the statutes at issue in the case but also the remedies provided under other federal statutes enacted under the spending clause, including Title IX. As a practical matter, courts have often treated remedies under these statutes in an equivalent manner so that if a remedy was allowed for discrimination under one statute, a court would allow that remedy to apply when an individual suffered discrimination under one of the other statutes.

Title IX does not expressly address the issue of whether someone harmed by unlawful discrimination has the right to bring a private lawsuit seeking relief for a violation, but the Supreme Court has long held that private lawsuits [meaning there is a private right of action for an individual to bring a lawsuit whether against a school or person] are permitted to enforce Title IX provisions.

That would seem to undermine the concept that a remedy must be specifically addressed in the statute to provide notice of potential liability to recipients. Moreover, the fact that compensation for emotional distress was actually an available remedy under traditional contract law in some circumstances would also seem to indicate some weakness in the court’s reasoning.

While it, therefore, seems likely that the Court could and would extend the prohibition on emotional distress damages to Title IX cases, it is also certainly possible that the results of this ruling could be overturned in the future either through judicial action under a different panel or through express federal legislation. 

Dedication to Justice Under Title IX

Interpretations of Title IX procedures, applications, and remedies have changed over the years and will continue to evolve. At Duffy Law, we monitor every development and help our clients take advantage of every potential opportunity to obtain justice, whether they are bringing a complaint under Title IX or defending against allegations of a violation. If you have questions about a claim, we invite you to contact us for a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.