Supreme Court Discrimination Case Narrows Scope Of Restitution For Individuals

• Published date: 27 May 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Ms Audrey Crowell and Sara Helene Shanti

Last month, in Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court denied a petitioner's right to emotional distress damages in a private action brought under federal anti-discrimination laws. The Petitioner, a woman who is both deaf and legally blind, alleged that when she requested an American Sign Language interpreter at Premier Rehab Keller ("Premier"), the clinic denied her request, resulting in her inability to receive treatment. She filed suit under Section 504 of the Rehabilitation Act ("Rehab Act") and Section 1557 of the Affordable Care Act ("ACA"), two federal statutes that prohibit recipients of federal funding from discriminating in the delivery of services based on disability. The Fifth Circuit dismissed her claim, reasoning that emotional distress damages are categorically unavailable in private actions and cannot be used to enforce either the Rehab Act or the ACA. As explained below, the Supreme Court affirmed the Fifth Circuit ruling.

Narrowing Scope of Relief for Victims of Discrimination

This decision is notable because it cemented an enforcement trend for two major discrimination laws at a time when healthcare disparities are at the forefront of national discussions. The Supreme Court communicated its intent to limit enforcement in several ways. First, the decision resolved a previous split between the Fifth Circuit and the Eleventh Circuit; the latter of which ruled, in 2007, that emotional distress damages are available under the Rehab Act.¹ Second, the decision effectively narrowed the scope of restitution available under both the Rehab Act and the ACA. Third, and most notably, the decision continued the pendulum-like treatment of Section 1557 that was introduced under the Obama administration.

The Obama-era Section 1557 regulations explicitly provided a private right of action, including access to compensatory damages.² But the Trump Administration Section 1557 rules repealed several of those provisions-including the express statement of a private right to action.³ In 2021, the pendulum swung back to a wider scope with the Biden Administration recognizing sexual orientation and gender identity as categories protected under Section 1557 for the first time.⁴ Although the Office of Civil Rights ("OCR") has articulated its intent to interpret relief available under Section 1557 more broadly, in this ruling the judicial branch swings the pendulum back toward a narrower application of the statute.

Contract-Law Theory

Since...