Two major health care rights cases made it to the Supreme Court this year. In the first, Cummings v. Premier Rehab Keller, the Court will decide whether victims of discrimination by federal funding recipients, including health care providers, can seek damages for emotional distress under Section 1557 of the Affordable Care Act, Section 504 of the Rehabilitation Act, and other federal civil rights laws. In the other, CVS Pharmacy Inc. v. Doe, the Court was set to decide whether claims of disparate-impact discrimination are available under Section 1557 and Section 504. Shortly before the scheduled argument, however, that case withdrawn by CVS and will no longer be heard.
Emotional Distress Damages in Cummings v. Premier Rehab Keller
On November 30, the Supreme Court heard arguments in a lawsuit brought under Sections 504 and 1557, with significant stakes for individual plaintiffs’ ability to challenge violations of their civil rights by health care providers (and other entities that receive federal funding).
Jane Cummings, who is deaf and communicates primarily in American Sign Language (ASL), was referred by her physicians to Premier Health, a physical therapy practice, to treat her chronic back pain. She requested an ASL interpreter, but Premier denied her requests, preventing her from receiving treatment at the facility. Cummings’ lawsuit challenged Premier’s refusal to provide her an ASL interpreter as violating Sections 504 and 1557. She sought damages for the “humiliation, frustration, and emotional distress” she suffered from this discrimination and refusal to accommodate her disabilities.
Plaintiffs in federal civil rights lawsuits have long been able to seek emotional distress damages as a form of compensatory relief when they can substantiate such harm. Courts agreed with this generally accepted and previously uncontroversial principle — until a 2020 decision by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed a district judge’s dismissal of Cummings’ case, holding that emotional distress damages are unavailable under federal civil rights laws prohibiting discrimination by federal funding recipients. The Fifth Circuit’s decision squarely conflicts with an Eleventh Circuit’s 2007 decision, which held that emotional distress damages are available under Section 504.
Until now, the Supreme Court has never questioned the availability of emotional distress damages in these types of cases. For decades, federal courts have generally understood that compensatory damages are available to individuals who suffered humiliation, distress, stigma, and other non-economic harms from intentional discrimination. Indeed, as the U.S. Department of Justice noted in its amicus brief supporting Cummings, the federal government has always interpreted these statutes to provide emotional distress damages when warranted.
Emotional distress damages are critical to ensuring robust private enforcement of the nation’s civil rights laws. Why? Because emotional injury is often the primary harm suffered by victims of intentional discrimination. If victims cannot recover emotional distress damages, many would simply be unable to vindicate their rights in federal court.
As the NAACP Legal Defense and Educational Fund, American Civil Liberties Union (ACLU), and National Women’s Law Center explained in their amicus brief, Congress intended for federal civil rights laws to be used for “[c]onfronting and remedying the non-economic effects of intentional discrimination” and “courts have properly and routinely permitted private plaintiffs to recover emotional distress damages.” The groups emphasized the “widespread understanding…that discrimination inflicts dignitary, stigmatic, and emotional harm,” and that emotional distress damages have long been considered necessary to make civil rights plaintiffs whole for those injuries.
What Could It Mean?
The Fifth Circuit’s decision effectively closed the courthouse door to many victims of discrimination in the three states in that circuit — Texas, Louisiana, and Mississippi. If the Supreme Court affirms that decision, this limitation would be imposed nationwide. Many who face discrimination based on race, color, national origin, sex, disability, and other factors in health care and other areas would lose the ability to seek this important form of relief in federal courts.
At oral argument, justices on both the Court’s liberal and conservative wings expressed skepticism about Premier Health’s position. While several justices expressed concern about the potential for high awards against health care providers, attorneys for Cummings and the Department of Justice explained that significant emotional distress awards have been rare.
If the Court rules for Cummings, victims of discrimination who experience stigma and emotional harm would remain able to seek such relief in federal litigation. A Supreme Court ruling against Cummings, however, could gut private enforcement of federal civil rights laws, erode efforts to advance health equity, and leave victims of discrimination with fewer tools to combat bias, stigma, and mistreatment.
Disparate Impact Discrimination in CVS v. Doe
In CVS v. Doe, plaintiffs challenged CVS’ specialty drug policies as restricting access to necessary medications in a way that disproportionately affects people with HIV, thus discriminating against them and others on the basis of disability. The oral argument scheduled for December 7 was canceled after CVS agreed to withdraw the case, a move heralded by civil rights groups as a “major victory for the disability rights community.”
CVS had asked the Supreme Court to reverse a December 2020 decision by the U.S. Court of Appeals for the Ninth Circuit that held that disparate impact claims are available under Sections 1557 and 504. The Ninth Circuit’s decision — like earlier decisions by three other federal appeals courts — meant that these laws prohibited both intentional discrimination and discrimination based on seemingly neutral policies that have a disproportionately negative impact on people with disabilities. Only one appeals court — the Sixth Circuit — held that disparate impact claims are unavailable under these laws.
What Could It Mean?
CVS’ withdrawal leaves the Ninth Circuit’s decision in place and has prevented a decision that would have weakened federal disability rights protections nationwide. Because a circuit split remains, however, this issue may return to the court through another case.
Katie Keith is a scholar and director of the Health Policy and the Law Initiative at the O’Neill Institute.
Joseph Wardenski, founder of the civil rights law firm Wardenski P.C., is a legal consultant to the Health Policy and the Law Initiative at the O’Neill Institute.