Supreme Court Holds that Emotional Distress Damages Are Unavailable Under the Rehabilitation Act of 1973 and the Affordable Care Act

May 3, 2022
On April 28, 2022, in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. __ (2022), the Supreme Court held in a 6-3 decision that emotional distress damages are not recoverable under the Rehabilitation Act of 1973 and the Affordable Care Act (the “ACA”).  We previously discussed oral argument in this case here.
 
Background.  Petitioner Jane Cummings, who is deaf and legally blind, sought physical therapy services from Respondent Premier Rehab Keller, P.L.L.C. (“Premier”) in 2016 and 2017. After Premier refused to provide Cummings with an ASL interpreter, Cummings received services elsewhere and filed suit against Premier, alleging that Premier discriminated against her on the basis of disability in violation of the Rehabilitation Act and the ACA. Cummings sought, among other remedies, emotional distress damages.  The district court dismissed Cummings’ complaint, concluding that the only compensable injury she suffered was emotional distress, and that neither the Rehabilitation Act nor the ACA authorize awards of emotional distress damages. The Fifth Circuit affirmed dismissal of Cummings’ complaint.
 
The Decision.  In an opinion authored by Chief Justice Roberts, the Court explained that statutes that impose liability on private entities based on their receipt of federal funding—including the Rehabilitation Act and the ACA, which prohibit recipients of federal funds from discriminating on the basis of disability—should be viewed through the lens of contract law.  In so reasoning, the Court concluded that remedies for violations of those statutes are limited to those for which the recipient would have had clear notice in accepting the funds.  Utilizing that framework, the Court observed that “[i]t is hornbook law that ‘emotional distress is generally not compensable in contract[.]’”  Because emotional distress damages are not generally available in contract law and neither the Rehabilitation Act nor the ACA expressly provide for such damages, the Court held that “we therefore cannot treat federal funding recipients as having consented to be subject to damages for emotional distress.”
 
The Concurrence.  In an opinion joined by Justice Gorsuch, Justice Kavanaugh rejected the contract law analogy as “an imperfect way to determine the remedies for this implied cause of action” and argued, instead, that “the inquiry [should] focus on a background interpretive principle rooted in the Constitution’s separation of powers.”  Because “Congress, not this Court, creates new causes of action,” the concurrence concluded that emotional distress damages were unavailable.
 
The Dissent.  In dissent, Justice Breyer agreed with the Court’s conclusion that principles of contract law should guide the Court’s inquiry, but concluded that “[e]motional distress damages were traditionally available when ‘the contract or the breach’ was ‘of such a kind that serious emotional disturbance was a particularly likely result.’”  The dissent reasoned that, because intentional invidious discrimination “is particularly likely to cause serious emotional disturbance,” victims of such discrimination should be able to recover emotional distress damages.  The dissent also argued that Congress has provided for emotional distress damages under other antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964, and that the Court’s decision therefore creates an “inequity” because emotional distress damages are available for certain types of discrimination claims but not others.
 
While the Court’s decision limits damages under the Rehabilitation Act and the ACA, and likely Title VI of the Civil Rights Act of 1964 (prohibiting race and national original discrimination) and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination), emotional distress damages remain available under certain antidiscrimination statutes where Congress expressly provided for such damages, such as 42 U.S.C. § 1983 and Title VII of the Civil Rights Act.