Damages for Emotional Suffering

Schools accept money from the federal government. In return they agree not to discriminate. If they do, the victim can sue them in court for damages. Last week the U.S. Supreme Court clarified the limit on those damages.

The case concerned a deaf person named Jane Cummings. She needed physical therapy and went to a local provider, Premier Rehab. At her appointments she asked for a sign language interpreter. Premier refused.

Cummings sued under Section 504 of the Rehabilitation Act of 1973. This prohibits discrimination against a person’s disability. Cummings argued that Premier could have worked with her deafness but chose not to. She suffered no physical harm or economic loss. She claimed compensation frustration and humiliation.

The Supreme Court denied Cummings’ claim. When Premier took federal dollars, said the Court, it made a contract with the federal government. It agreed that if it discriminated, a victim like Cummings could sue.

The catch was the remedy. The Court ruled that laws like Section 504 allow victims to pursue only the remedies traditionally available under contract law. These include money for physical harm and economic loss. They do not include damages for emotional harm. Cummings could thus not claim damages for ‘mere’ distress.

The Court’s ruling applies to three other civil rights laws. Title VI of the Civil Rights Act of 1964 forbids discrimination on the basis of race. The Affordable Care Act prohibits discrimination in health care. Title IX outlaws discrimination on the basis of sex.

In theory all four have always had this limit. In reality lawyers have seldom faced it. Few discrimination cases have ever gone to trial. Lawyers have always haggled over a settlement’s bottom line without thinking hard about the contract at the center of the case. Now they will have to.

Jane Cummings’ case did not help her, but it may benefit others. Civil rights lawyers will now have to invest more in their clients. Until now it has not mattered that no one can measure emotional pain. After Cummings, lawyers will have to send victims of discrimination to doctors and therapists to look for signs of long-lasting psychological damage. This should make their claims more realistic. Whether it leads to fewer or more claims, no one can say. 

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