Congress Must Act in Response to the Supreme Court’s Ruling in Cummings v. Premier Rehab Keller, P.L.L.C.

By: M. Emily Mahana

Cummings v. Premier Rehab Keller, P.L.L.C.,[1] decided on April 28, 2022, denies victims of disability discrimination compensatory damages for emotional suffering.

Jane Cummings is a blind and deaf woman who communicates using American Sign Language (ASL).[2] Cummings sought physical therapy treatment at Premier Rehab Keller, P.L.L.C. and requested that the facility provide an ASL interpreter at her appointments.[3] Premier Rehab denied this request and told Cummings that she could communicate through lip-reading, written notes, or gesturing.[4] Cummings sued under the Rehabilitation Act of 1973[5] and the Affordable Care Act.[6] Both Acts prevent federal funding recipients from discriminating on the basis of disability. Premier Rehab is a facility that receives federal reimbursements for some of its Medicare and Medicaid services.[7]

The Supreme Court held that emotional distress damages are unavailable in private actions to enforce both the Rehabilitation Act of 1973 and the Affordable Care Act.[8]

In its flawed reasoning, the Supreme Court avers that federal funding recipients would not be “on notice” that they could be on the hook for emotional distress damages as a result of their invidious discrimination, therefore individuals cannot recover on this basis.[9] In Barnes v. Gorman,[10] the Supreme Court held that private individuals seeking enforcement of antidiscrimination statutes have an implied right of action. However, here the court reasons that because the right is implied, the remedies are unclear.[11] To determine the remedies available, the court analogizes to contract law. The court finds that damages for emotional distress would be available “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.”[12] Under “hornbook law” the court found that “emotional distress is generally not compensable in contract.”[13] Therefore, the court concludes that Premier Rehab and other federal funding recipients would not have been on notice, and thus they are not liable for emotional distress damages. The dissent correctly points at that the majority’s reasoning is flawed precisely because damages for emotional suffering in contract law have been available “where the breach was particularly likely to cause suffering of that kind.”[14] For instance, contracts for marriage give rise to emotional distress damages.[15] Unfortunately, the dissent’s reasoning is not law.

The practical effects of this decision are clear. As Justice Breyer explained in his dissent, Cummings denies individuals a remedy for invidious discrimination.[16] Cummings suffered humiliation and frustration.[17] The indignities of discrimination often take the form of deep emotional and mental harms.  Compensation for emotional distress is often the only remedy that redresses the harm inflicted. This also makes it difficult to hold violators of disability rights accountable. Individuals with disabilities should not have to face discrimination, but when they do, this ruling limits their ability for recourse and removes a deterrent for perpetrators of discrimination.

One in four Americans is disabled.[18] Additionally, because anyone can become disabled at any time this is not just a concern for individuals who are currently disabled. Furthermore, as Justice Breyer implied in the dissent,[19]this decision also likely eliminates the availability of emotional distress damages in cases of race, color, national origin, sex, and age discrimination under corresponding federal antidiscrimination statutes.[20]

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[1] Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022).

[2] Id. at 1568.

[3] Id. at 1569.

[4] Id.

[5] Rehabilitation Act of 1973, §504, 87 Stat. 394, as amended, 29 U. S. C. §794(a).

[6] Patient Protection and Affordable Care Act, §1557, 124 Stat. 260, 42 U. S. C. §18116.

[7] Cummings,142 S. Ct. 1562, 1569.

[8] Id. at 1576.

[9] Id. at 1570-71.

[10] Barnes v. Gorman, 122 S. Ct. 2097 (2002).

[11] Cummings, 142 S. Ct. 1562, 1569-70.

[12] Id. at 1570.

[13] Id. (internal quotations omitted).

[14] Id. at 1578.

[15] Id. at 1579.

[16] Id. at 1582.

[17] Id. at 1569.

[18] Disability and Health Promotion: Disability Impacts All of Us, Ctrs. for Disease Control & Prevention (2020), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.

[19] Cummings, 142 S. Ct. 1562, 1577-79.

[20] See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116.

Emily (she/her) graduated from Brigham Young University – Idaho with a B.A. in History. She is a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests range from disability rights to social justice issues affecting minorities. Her personal interests include baking bread, cooking curries, and skincare.