Cummings’ Rejection of Damages Under § 794 May be Mistaken, But Damages Are Still Available for Employees Who Claim Disability Discrimination

George M. ChuziSince 1973, the federal Rehabilitation Act has prohibited discrimination against disabled persons in two distinct categories: individual employees (29 U.S.C. § 791), and participants in programs or activities receiving federal funds or assistance (29 U.S.C. § 794). In addition, the Affordable Care Act (“ACA”) prohibits discrimination by “any health program or activity, any part of which is receiving Federal financial assistance” (42 U.S.C. § 18116). After Congress provided for compensatory damages to victims of discrimination, 42 U.S.C. § 1981a, for the past 30 years compensatory damages, including damages for emotional distress, have been an uncontroversial remedy.

On April 28, 2022, however, the Supreme Court issued its decision in Cummings v. Premier Rehab Keller, PLLC. Ms. Cummings sued Premier for disability discrimination, and she sought damages for emotional distress under both the Rehabilitation Act and the ACA because Premier receives reimbursement from Medicare and Medicaid for some of its services. The Supreme Court held that emotional distress damages were not available under those statutes for persons claiming discrimination, because Congress did not indicate in either statute that such damages could be available. Interpreting the case as though Premier had entered into a contract with the United States, rather than interpreting the applicable statutes, the Court held that while Premier knew it could not discriminate against Ms. Cummings, it was not on notice that it could be liable for damages for her emotional distress merely because it accepted federal funds.

Cummings has sent shock waves through the Civil Rights community almost from the moment it was released, because the Rehabilitation Act and the ACA are not the only statutes that prohibit certain actions by entities that receive federal payments. In addition to the ACA and § 794 of the Rehabilitation Act, the Court itself identified two other statutes that are directed at recipients of federal assistance: Title VI of the Civil Rights Act, and Title IX of the Education Amendments of 1972, which prohibits sex “discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. Because Title IX has been utilized successfully to protect female students from physical and emotional abuse by schools and similar institutions, the impact of Cummings will be felt immediately unless Congress quickly modifies the statutes.

One area that is not impacted by Cummings, however, is the availability of compensatory damages for disabled employees who are discriminated against in violation of the Rehabilitation Act.  Although § 794 of the Rehabilitation Act applies only to recipients of federal funds, § 791 of the Act (29 U.S.C. § 791) is entirely different. First, § 791 is titled “Employment of Individuals with Disabilities,” and in § 791(f) Congress referred to “complaints alleging non-affirmative action employment discrimination.” Those complaints are explained in § 794a, which provides that the procedures, rights, and remedies available to federal employees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16) are available “with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint . . .” 29 U.S.C. § 794a(a)(1). As noted above, Congress has separately provided that those remedies include compensatory damages which “the complaining party may recover.” 42 U.S.C. § 1981a(a)(2).

Notwithstanding that damages for prevailing employees in disability complaints are unaffected by Cummings, the Court’s rejection of emotional distress as a remedy for a violation of § 794 may be mistaken. According to the Court, while “the Rehabilitation Act . . .  expressly incorporates the rights and remedies provided under Title VI [of the Civil Rights Act] . . . ‘it is less clear what remedies are available in such a suit.’” Cummings, slip op. at 3-4, citing § 794a(a)(2), and quoting Barnes v. Gorman, 536 U. S. 181, 185 (2002). That is not correct. The remedies available for a violation of § 794 are crystal clear from § 794a(a)(2):

The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e–5), . . . shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

29 U.S.C. § 794a(a)(2) (emphasis added). “Subsection (e)(3) of § 2000e-5” specifically allows “any relief authorized by [42 U.S.C. §] 1981a,” 42 U.S.C. § 2000e-5(e)(3)(B), which, as noted above, expressly includes compensatory damages for claims of disability discrimination. While damages for emotional distress are limited according to the size of the defendant, they are specifically included in the definition of compensatory damages. 42 U.S.C. § 1981a(b)(3).

The remedies available for a violation of the ACA are less clear. The provision relied upon by the Court (42 U.S.C. § 18116) includes no provision for damages, but it does adopt “[t]he enforcement mechanisms provided for and available under such . . . section 794” of the Rehabilitation Act. Accordingly, to the extent section 794 allows for damages under § 794a(a)(2), the ACA may do so as well, contrary to the Court’s holding.

Unfortunately, none of the foregoing appears sufficient to preserve the availability of damages for proven violations of Title IX (barring sex discrimination in educational institutions). Congressional action will be necessary to protect vulnerable women from abuse in and from these institutions.

George Chuzi is a partner at KCNF. The firm has just published the 2021 edition of “Security Clearance Law and Procedure,” the essential resource in that field. If you have any concerns or questions regarding activities that may implicate a security clearance, the attorneys at KCNF are experienced in clearance matters and are available to assist.

This article also appeared in Westlaw Today on May 9, 2022.