On April 28, the Supreme Court issued a decision in a disability rights case that will foreclose meaningful financial compensation for individuals who face all forms of discrimination in health care settings and other federally funded programs. In Cummings v. Premier Rehab Keller, the Court held that plaintiffs in suits brought under Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act of 1973 cannot be compensated for emotional harm caused by unlawful discrimination prohibited by those laws. The 6-3 decision — written by Chief Justice Roberts and joined by the Court’s conservative bloc — torpedoes the previously accepted principle that discrimination victims could seek financial compensation for the worst harms caused by discrimination: humiliation, distress, and stigma.
The Court’s ruling means that people who experience discrimination by health providers and other federal funding recipients based on race, national origin, sex, disability, and other protected characteristics will be unable to seek this type of compensation for these injuries. If Congress wants to right this wrong, it can — by making clear that emotional distress damages are available. But victims have lost a key way to redress their rights in the meantime.
Federal Funding Recipients Did Not “Consent” to Being Sued for Emotional Distress Damages
As we explained in our summary of the case last year, courts have routinely awarded emotional distress damages in these cases for decades. Nevertheless, the Court held that federal funding recipients lacked “clear notice” that they may be liable for such damages when they agree to accept federal funds in exchange for a promise not to discriminate. Likening this promise to a contract, the Court held that unless the statutes specifically provided for emotional distress damages — which they do not — plaintiffs may only seek remedies that were “traditionally available in suits for breach of contract.” Finding that emotional distress damages were not historically available in contract cases, the Court concluded that recipients did not “consent” to liability for such damages when accepting federal funds. The majority reached this conclusion even though emotional distress damages were traditionally available where the contract breach was “particularly likely” to result in emotional harm.
Dissent Explains Why the Court’s Decision is at Odds with Congress’ Intent to Eliminate Invidious Discrimination in Federally Funded Programs
In a dissenting opinion, Justice Breyer, joined by Justices Sotomayor and Kagan, wrote that a recipient’s agreement not to discriminate as a condition of receiving federal funds is precisely the type of contract where a breach — unlawful discrimination — could cause emotional harm. In most contract cases, which typically involve commercial disputes, economic damages are sufficient to right the wrong done by the breaching party. But, Justice Breyer observed, civil rights cases are not like most contract cases — rather, “emotional injury is the primary (sometimes the only) harm caused by discrimination, with pecuniary injury at most secondary.” Thus, he wrote, the majority’s opinion frustrates the basic purpose of nondiscrimination laws: “to vindicate ‘human dignity and not mere economics.’” For the many “victims of intentional discrimination [who] suffer profound emotional injury without any attendant pecuniary harms,” Justice Breyer concluded, Cummings “will leave those victims with no remedy at all.”
Implications for Health Care Discrimination Cases
Cummings effectively closes the courthouse door to many individuals who experience unlawful discrimination by health providers and other federal funding recipients. The Court’s decision means discrimination victims can only seek compensation for any direct financial losses resulting from discrimination and, in limited circumstances, injunctive relief. As Justice Breyer noted, many civil rights plaintiffs suffer no direct economic injury from discrimination. And plaintiffs who seek only to challenge past discrimination are generally foreclosed from seeking injunctive relief. Individuals unable to allege financial injury or the need for injunctive relief will be barred from seeking relief in court.
This is exactly what happened to Jane Cummings, whose disability discrimination claims against Premier Rehab Keller, a Texas physical rehabilitation facility, were never considered. Cummings, who is deaf and legally blind, asked Premier to provide her with an American Sign Language (ASL) interpreter to enable her to communicate with her treating therapist. When Premier denied this reasonable accommodation request, Cummings was forced to seek another provider, delaying her access to care. She then filed suit. Without reaching the merits of her Section 1557 and Section 504 claims, the district court dismissed her case because the only injuries she alleged were “humiliation, frustration, and emotional distress,” which the court held were not compensable. Because Cummings has no remaining federal or state law claims, the Supreme Court’s decision means she will not have her day in court.
Other individuals with discrimination claims against health care entities could face a similar fate. For example, a transgender person subjected to gender-based harassment by a provider — who experienced profound emotional suffering but no financial loss — will have limited or no recourse in federal court. So too for someone with limited English proficiency denied language assistance services needed to access treatments. Even patients denied care outright based on a protected characteristic will be unable to seek recourse in federal court unless they have claims for injunctive relief, economic loss, or noneconomic damages under other federal, state, or local laws. Otherwise, victims of health care discrimination will be limited to seeking administrative enforcement by the Office for Civil Rights at the U.S. Department of Health and Human Services to challenge violations of federal civil rights laws.
What’s Next?
Although Cummings nominally applies only to Section 1557 and Section 504, the ruling will almost certainly foreclose emotional distress damages in cases brought under other Spending Clause statutes prohibiting discrimination by federal funding recipients, including Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The decision does not affect the availability of emotional distress damages under other civil rights laws, like Title VII of the Civil Rights Act of 1964, which expressly provide for that relief.
The majority opinion makes clear that if Congress wishes to restore emotional distress damages as an available remedy under the Spending Clause statutes, it can do so legislatively. A legislative fix would ensure that Congress’ intent in passing these laws — to root out unlawful discrimination by entities receiving federal funding — can be fulfilled.
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.
Katie Keith is a scholar and director of the Health Policy and the Law Initiative at the O’Neill Institute.
