SCOTUS Considers Emotional Distress Discrimination Damages
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Majority of Justices Appear Skeptical of Rehab Clinic’s Arguments in Disability Discrimination Case

Supreme Court Holds Investiture Ceremony For Associate Justice Amy Coney Barrett

The U.S. Supreme Court heard oral arguments on Tuesday in a case about whether victims of discrimination may recover certain damages for emotional distress from businesses that receive federal funding.

Stylized as Cummings v. Premier Rehab Keller, P.L.L.C., the facts implicate a rehab center, a recipient of federal funds, that thrice turned down a deaf and blind woman’s request for an American Sign Language (ASL) interpreter–despite her being referred to Premier for treatment of her chronic back pain by two different doctors.

Twice frustrated at the district and appellate court level, Jane Cummings filed for review with the nation’s high court.

“Although Ms. Cummings explained that her disabilities prevent her from communicating through other methods like notes, lipreading, or gestures, Premier refused to provide an interpreter,” her petition for writ of certiorari notes. “As a result, Ms. Cummings could not obtain treatment.”

After the third denial, “Cummings was ultimately forced to seek care elsewhere,” her attorney Andrew Rozynski wrote.

The heart of Cummings’s complaint is that because Premier receives federal funding, the clinic was legally obligated to accommodate her request under Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act. Premier Rehab’s refusal to provide an interpreter, Cummings argues, is a form of “disability discrimination” for which she is entitled damages due to the “humiliation, frustration, and emotional distress” she suffered as a result.

Cummings argued that two previous (and unanimous) Supreme Court opinions were dispositive in her favor.

Those cases include the 1992 decision in Franklin v. Gwinnett County Public Schools, which held that “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” In other words, monetary damages are generally available to remedy the violation of a federal right.

The 2002 case of Barnes v. Gorman clarified the extent of Franklin without overturning it and declared [emphasis in original]:

Our conclusion is consistent with the “well settled” rule 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.” Bell v. Hood. When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure. Punitive damages are not compensatory, and are therefore not embraced within the rule described in Bell.

During oral argument on Tuesday, Rozynski immediately faced resistance from Justice Clarence Thomas. The conservative jurist asked if there was another argument for Cummings if the court disagrees that emotional distress damages “were traditionally available” as a form of compensatory damages for breaches of contract–since Supreme Court precedent on Spending Clause lawsuits has long made an analogy to contract law.

Rozynski said there is another argument, and recited the Barnes and Franklin precedents. Thomas appeared unconvinced, saying those cases were “closer to either indifference or intentional tort.”

The attorney conceded that there was no intentional tort alleged here and then went on to vilify the Fifth Circuit Court of Appeals for what he termed their “categorical” denial of emotional distress damages in any and all Spending Clause-related litigation.

Chief Justice John Roberts telegraphed some discomfort with Rozynski’s argument. He wondered out loud how many prior cases had to find emotional distress damages viable in the lower courts before federal funds recipients are “bound” under the two statutes.

Rozynski countered that basic contract law supports his client’s bid for emotional distress damages by way of “restatements and all the leading treatises” because of the concept of public accommodation.

Justice Amy Coney Barrett cut in to argue that emotional distress damages have been granted in a “very narrow category of cases” but agreed that common carrier cases work strongly in Cummings’ favor.

“I think you’re right that if we read it at a high level of generality and look at the Restatement view, that if it’s foreseeable, and if it’s the kind of a contract where we would say it’s foreseeable, then I think emotional damages–I think you’re right–I mean discrimination and stigmatic injury flow from discrimination,” the most recently-minted justice said but expressed some concern that the more granular the analysis, the less likely emotional distress damages might be available.

Premier, for their part, argues that the issue is indeed much narrower.

Federalist Society contributor attorney Kannon K. Shanmugam, arguing for the clinic, told the court the two statutes at issue are “in the nature of contracts” and therefore “recipients of federal funding must have clear notice of the conditions that attach to the funding.”

Justice Sonia Sotomayor clearly wasn’t taken with the rehab center’s arguments.

“I think the most important point is to make sure the contract here is an agreement by your client to treat people with disabilities equally to others and to provide accommodations and let them enjoy the benefit of their services if it’s reasonable to do so,” she told the elite attorney. “That’s no different than the common carrier agreement to treat a passenger with dignity and to treat them with a sense of respect–with special care. So, it’s in the same nature. And, both of them are intentional in the sense of what an intentional tort speaks about.”

Justice Brett Kavanaugh also expressed some skepticism with the arguments put forward by the rehab clinic’s attorney.

“If we’re in the contract world, is the right question to ask, ‘Is this kind of situation more like the general contract or more like the contracts in the quote, unquote, narrow exception?'” Kavanaugh asked.

Shanmugam attempted to venture that “the prevailing rule” was the correct question here, but was cut off by Kavanaugh who said: “Calling it narrow doesn’t do much for me.”

Following up on that line of questioning, Justice Elena Kagan was also clearly unconvinced by the rehab clinic.

“On the one hand you have these, what seem, as Justice Kavanaugh just suggested, the most analogous cases,” she said. “Which are the common carrier slash innkeeper cases where there was a refusal or a denial of adequate service. So those cases seem to be pretty much all cutting against you. And then, you have, like, ‘Well, what do I really do when I’m trying to think what my legal obligations are?’ I go to the Restatements, I go to the treatises…If you look at the treatises, if you look at the most analogous set of cases, they cut against you both.”

Faced with apparently hostile justices appointed by both Republicans and Democrats, Shanmugam made sure to revert to the text of the statutes in an effort to save his client’s case with the conservative and right-wing judges, saying that the case is fundamentally about what Congress specifically authorized in terms of damages. The rehab clinic’s attorney said this case would have a completely different “complexion” if there were specific damages in either of the statutes.

“Congress has made the judgment,” Shanmugam said, “that emotional distress damages are not available.”

On rebuttal, Rozynski disagreed that Premier was not on notice about the nature of the damages they might face for denying an accommodation to a disabled person.

Cummings’s attorney argued “that this was the state of the law for over 30 years,” said Premier’s arguments “simply are not true” and if accepted “would be overturning a whole body of case law.”

“Emotional distress damages are the most common and often the only form of compensatory damage remedy for victims of intentional discrimination,” Rozynski said.

[image via Chip Somedevilla/Getty Images]

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