Cummings v. Premier Rehab Keller PLLC:

Implications and Avenues for Reform

National Council on Disability

January 19, 2023 
1

 National Council on Disability 

An independent federal agency making recommendations to the President and Congress to 

enhance the quality of life for all Americans with disabilities and their families. 

Letter of Transmittal 

January 19, 2023 

The President 

The White House 

Washington, DC 20500 

Dear Mr. President: 

On behalf of the National Council on Disability (NCD), I submit the report, Cummings v. 

Premier Rehab Keller PLLC: Implications and Avenues for Reform. 

On April 28, 2022, the U.S. Supreme Court held that a plaintiff bringing suit to enforce 

the antidiscrimination provisions of Section 504 of the Rehabilitation Act of 1973 

(Section 504), or Section 1557 of the Patient Protection and Affordable Care Act 

(Section 1557) cannot recover damages for emotional distress resulting from intentional 

disability-based discrimination. The Cummings decision has significant implications for 

people with disabilities who experience intentional discrimination by public and private 

entities who receive federal financial assistance (FFA). Entities such as public and 

private colleges and universities, hospitals, group homes, physical therapist offices, and 

others who receive FFA, including federal grants, loans, or other forms of FFA will no 

longer need to remedy intentional discrimination based on disability when the resulting 

harm is anxiety, stress, depression, marital strain, humiliation, or other similar emotional 

pain. Compensation for economic losses is now the only remedy available. However, 

outside of the employment context, people who experience disability-based 

discrimination by such entities primarily suffer emotional distress from the 

discrimination, not economic loss. The decision also leaves people who experience 

emotional distress from disability-based discrimination by public or private entities 

wholly reliant on state law for redress, and state laws vary widely. 

This report analyzes the Supreme Court’s decision, discusses the challenge of securing 

injunctive relief when emotional distress damages are not available, describes the 

impacts of Cummings on people with disabilities, including immediate impacts already 

experienced, and the availability of emotional distress damages under state laws. 
2

NCD concludes that the most effective manner to respond to the Cummings decision is 

enactment of legislation which restores the ability of people with disabilities to seek 

redress for emotional distress damages for disability-based discrimination. The 

legislation should also instruct federal courts not to use contract law analogy in 

analyzing discrimination cases under Congress’s Spending Clause authority. NCD also 

recommends that federal agencies notify FFA recipients of the specific damages that 

recipients may be liable for if they violate Section 504, Section 1557, or other federal 

antidiscrimination laws based on the Spending Clause. 

Appropriate and adequate remedies must continue to be available to people with 

disabilities who experience intentional discrimination at the hands of recipients of FFA. 

Without the availability of emotional distress damages under these statutes, victims of 

disability-based discrimination cannot be made whole. 

NCD strongly believes that action must be taken to restore the remedy that Cummings

eliminated. Implementation of the recommendations in this report will restore the 

availability of emotional distress damages and provide recipients of FFA with notice of 

their responsibilities regarding non-discrimination. 

Federal funds should not be used to perpetuate discrimination. Without a legislative fix 

to Section 504 and Section 1557, that is what is now occurring. 

Respectfully, 

Andrés J. Gallegos, J.D. 

Chairman 
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National Council on Disability Members and Staff 

Members 

Andrés J. Gallegos, Chairman

Claudia Gordon, Vice Chair

Hoskie Benally, Jr. 

Sascha Bittner 

Theo Braddy 

Shawn Kennemer 

Risa Rifkin 

Neil Romano 

Emily Voorde 

Staff 

Anne C. Sommers McIntosh, Executive Director 

Joan M. Durocher, General Counsel & Director of Policy 

Lisa Grubb, Director of Administration, Finance, & Operations 

Stacey S. Brown, Staff Assistant 

Kimie Eacobacci, Legislative Affairs Specialist 

Netterie Lewis, Administrative Support Specialist 

Amy Nicholas, Senior Attorney Advisor 

Nicholas Sabula, Public Affairs Specialist 

Amged Soliman, Senior Attorney Advisor 

Ana Torres-Davis, Senior Attorney Advisor 

Keith Woods, Financial Management Analyst 
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Contents 

Summary of NCD Brief on Cummings v Premier Rehab Keller................................................... 5

I. Introduction............................................................................................................................................7

II. Emotional Distress Damages and the Cummings Decision .................................................... 8

A. Analysis of the Decision ........................................................................................................ 8

B. Damages for Breach of Contract ....................................................................................... 11

C. Notice to Federal Funds Recipients of Potential Liability........................................... 13

D. State Courts Commonly Allow for Emotional Distress Damages in Contract 

Cases..................................................................................................................................................................16

E. The Challenge of Securing Injunctive Relief When Emotional Distress Damages 

are Not Available ................................................................................................................................17

III. Impact on the Cummings Decision on People with Disabilities .......................................... 19

A. Immediate Impact................................................................................................................... 19

B. Remedies Remaining for Emotional Distress Damages under State Law..............21

IV. Recommendations........................................................................................................................... 22

A. Congress should Enact Legislation to address Cummings Decision .....................22

B. Federal Agencies should include Notice in Grant Awards that recipients are 

subject to specific damages for violations of Section 504..................................................... 23

Appendix A: 2022 Review of State Human and Civil Rights Laws: Compensatory 

Damages (Emotional Distress)........................................................................................................... 24
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Acknowledgments

The National Council on Disability (NCD) thanks David Hutt and Philip Fornaci with the 

National Disability Rights Network (NDRN) for their work developing this brief. 

 
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Summary of NCD Brief on Cummings v. Premier Rehab Keller

The National Council on Disability (NCD), in this brief analysis discusses the holding 

and implications of the U.S. Supreme Court decision in Cummings v. Premier Rehab 

Keller P.L.L.C. handed down in April 2022. The Cummings decision eliminated the 

ability of people who experience disability-based intentional discrimination to obtain 

emotional distress damages from public and private entities who receive federal 

financial assistance (FFA) from the federal government under Section 504 of the 

Rehabilitation Act of 1973 or Section 1557 of the Patient Protection and Affordable Care 

Act. Entities such as public and private colleges and universities, hospitals, group 

homes, physical therapist offices, and others who receive FFA, including federal grants, 

loans, or other forms of FFA will no longer need to remedy discrimination based on 

disability when the only harm of the discrimination results in anxiety, stress, depression, 

marital strain, humiliation, or other similar emotional pain. 

The Cummings decision leaves people with a disability who experience emotional 

distress from discrimination in public accommodations reliant on state law, which vary 

widely. The decision is currently limited to violations of Section 504 of the Rehabilitation 

Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act, 

however, it is possible a future court will prohibit emotional distress damages for other 

civil rights violations by FFA recipients under Title VI of the Civil Rights Act of 1964, as 

amended, or Title IX of the Education Act of 1972. 

NCD concludes that the most effective way to address the Cummings decision is 

through enactment of legislation which restores the ability of people with disabilities to 

seek redress for emotional distress damages because of a disability-based 

discrimination, and which instructs the federal courts not to use contract law analogy in 

deciding discrimination cases under Congress’s Spending Clause authority. NCD also 

recommends that federal agencies clearly state in all applicable notices, or by other 

means as appropriate, the specific damages an FFA recipient may be liable to 

compensate if the recipient violates Section 504, Section 1557, and other similar federal 

antidiscrimination laws based on the Spending Clause.
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I. Introduction

In April 2022 the U.S. Supreme Court issued a decision in Cummings v. Premier Rehab 

Keller P.L.L.C i with significant implications for people with disabilities seeking to obtain 

redress for disability-based discrimination. In Cummings, the Court held that a plaintiff 

bringing suit to enforce the antidiscrimination provisions of Section 504 of the 

Rehabilitation Act of 1973 (RA or Section 504) or Section 1557 of the Patient Protection 

and Affordable Care Act (ACA or Section 1557) cannot recover damages for emotional 

distress which resulted from intentional discrimination. Although the Court reaffirmed the 

right of individuals to sue for other kinds of damages under these statutes, it rejected 

efforts to allow suits for compensation for emotional harm or injury caused by unlawful 

discrimination under either statute. With limited relief available, the decision now 

restricts people with disabilities seeking to enforce their rights under these federal 

antidiscrimination laws.ii 

Often, people who experience disability-based discrimination at the hands of a public or 

private entity which provides a service primarily suffer “emotional distress” damages for 

the pain and humiliation which results from the discrimination. Typically outside of the 

employment context, when disability-based discrimination occurs the person does not 

suffer significant economic losses, such as additional medical costs or other expenses, 

lost income, or lost property. 

After Cummings, only compensation for economic losses is now available under Section 

504, Section 1557, and other civil rights statues enacted through Congress’s authority 

under the Spending Clause of the U.S. Constitution.iii While the Americans with 

Disabilities Act (ADA) is not Spending Clause legislation,iv the Cummings decision 

creates an additional concern that the Supreme Court may apply a similar limitation on 

remedies when a private person subject to disability-based discrimination brings suit, 

known as a private right of action, under Title II of the ADA. Title II, unlike Title III of the 

ADA, provides for monetary damages. This brief analyzes the Court’s approach in 

Cummings, including a critique of the Court’s interpretation of compensatory damages; 

the potential application of its holdings to private rights of action under Title II of the 

ADA; the immediate implications for people with disabilities; and policy 

recommendations. 
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II. Emotional Distress Damages and the Cummings Decision

A. Analysis of the Decision

The Supreme Court’s decision and analysis in Cummings involving emotional distress 

damages is based on its 2002 decision in Barnes v. Gorman,v

 where the Court similarly 

limited the scope of remedies under Section 504. The Barnes Court held that 

compensatory damages, but not punitive damages, were available under Section 504. 

Compensatory damages, also called “actual damages,” under antidiscrimination laws 

cover the loss a person incurred as a result of the another’s discriminatory conduct. 

Some examples of compensatory damages are medical expenses, mental health 

counseling expenses, lost wages and costs associated with hiring sign language 

interpreters and other quantifiable out-of-pocket expenses reasonably incurred as a 

result of the discriminatory conduct. The monetary amount awarded under 

compensatory damages is intended to make good or replace the loss caused by the 

discriminatory conduct. Emotional distress damages, while more difficult to quantify, are 

also considered to be type of compensatory damages. 

Punitive damages, also called “exemplary damages,” are awarded to punish or make an 

example of a wrongdoer who has acted willfully, maliciously or fraudulently. Unlike 

compensatory damages that are intended to cover actual loss, punitive damages are 

intended to punish the wrongdoer for egregious behavior and to deter others from acting 

in a similar manner. Where available, punitive damages are awarded in addition to 

compensatory damages.vi 

While both Barnes and Cummings involved Congressional authority under the Spending 

Clause of the U.S. Constitution,vii Barnes went further and prohibited punitive damages 

under Title II of the ADA. Congress enacted the ADA under authority through the 

Fourteenth Amendment of the U.S. Constitution and not the Spending Clause. 

Cummings, however, did not extend its holding to the ADA or other non-spending 

clause legislation. 

The Barnes Court however, on which the Cummings Court relied heavily, did extend its 

holding regarding punitive damages under Section 504 to those available under Title II 

of the ADA by looking to Title VI of the Civil Rights Act of 1964, as amendedviii: 

The Rehabilitation Act, in turn, declares that the “remedies, procedures, and 

rights set forth in Title VI of the Civil Rights Act of 1964 ... shall be available” for 

violations of § 504... Thus, the remedies for violations of § 202 of the ADA and § 

504 of the Rehabilitation Act are coextensive with the remedies available in a 

private cause of action brought under Title VI of the Civil Rights Act of 1964, 42 

U.S.C. § 2000d et seq., which prohibits racial discrimination in federally funded 

programs and activities.ix

The Barnes Court analyzed Title VI of the Civil Rights Act and held that punitive 

damages are not permitted for violations of that Title.x

 “When a federal-funds recipient 

violates conditions of Spending Clause legislation, the wrong done is the failure to 
9

provide what the contractual obligation requires; and that wrong is “made good” when 

the recipient compensates the Federal Government or a third-party beneficiary (as in 

this case) for the loss caused by that failure.”xi The Barnes Court noted again that 

punitive damages are not compensatory, leaving in place the traditional view that 

compensatory emotional distress damages remained available under Spending Clause 

statutes like Section 504. Because it disallowed punitive damages under Title VI, 

Barnes similarly barred such damages in suits brought under Title II of the ADA and 

Section 504. The Barnes Court did not directly address other compensatory damages 

but implied they are available under the RA. 

Most immediately after the Cummings decision, people with disabilities who seek 

damages for harm caused by recipients of federal financial assistance (FFA) for 

intentional discrimination are limited to direct economic harm. They are now unable to 

secure damages for the broad category of compensatory emotional distress damages, 

that is, for non-economic harms. Emotional distress does not typically involve economic 

injury. It more often manifests itself through sleeplessness, anxiety, stress, depression, 

marital strain, humiliation, loss of self-esteem, excessive fatigue, nervous breakdown, 

ulcers, gastrointestinal disorders, hair loss, or headaches. While damages for emotional 

distress cannot be assumed because discrimination occurred, in the majority of 

jurisdictions prior to Cummings, a plaintiff's testimony, standing alone, could support an 

award of compensatory damages for emotional distress. 

Emotional distress damages have traditionally been available for breaches of contract 

since at least as early as 1902. For example, in Louisville & N. R. Co. v Hull (1902)

errors by railroad personnel delayed delivery of the corpse of Hull’s wife to a funeral by 

one day. The court ruled that “[D]amages for mental suffering are allowed because 

these are the natural result of the defendant's wrong, and in no other way can proper 

compensation for it be had.”xii Emotional distress damages were considered to be the 

only appropriate compensation for this kind of case, where there was no monetary loss 

to the plaintiff, but the non-monetary harm suffered is undeniable. Because emotional 

distress damages are now unavailable under Section 504 after Cummings, financial 

incentives for potential plaintiffs to pursue litigation that can address intentional 

discrimination are limited. Potential plaintiffs can sue only to prevent future 

discriminatory practices, assuming the strict requirements for bringing suit in federal 

court (“standing”) are met (see section E, below, “The Challenge of Securing Injunctive 

Relief When Emotional Distress Damages are Not Available,” for a discussion of 

standing issues). Such plaintiff’s now will not be personally compensated for the noneconomic harm they have suffered. Similarly, although attorneys’ fees remain available 

under Section 504, the limitation on damages provides smaller financial incentives for 

legal representation. This now results in a situation as exists under Title III of the ADA, 

which bars discrimination in public accommodations. Title III allows for injunctive and 

declaratory relief, but unlike Title II of the ADA, it does not permit recovery for economic 

or non-economic damages for successful litigants challenging discriminatory acts or 

practices. 

In approximately half of U.S. states and the District of Columbia, however, 

discrimination in public accommodations barred by Title III of the ADA is also barred 
10

under state laws, and provide potential damages in successful cases (see also 

Appendix A for state laws on emotional damages).xiii There are no similar options for 

alternative state law filings for Section 504 claims which allege violations by entities 

receiving FFA. After Cummings, many claims of intentional discrimination will go wholly 

unaddressed for lack of meaningful damages available to potential plaintiffs. 

Notably, places of religious worship (churches, synagogues), as well as other places or 

programs controlled by religious entities (such as schools, hospitals, day care centers, 

adoption agencies, thrift shops, shelters, and food banks) which are also considered 

religious entities, are excluded from Title III of the ADA (which covers public 

accommodations). However, places or programs controlled by religious entities, in 

particular faith-based hospitals, that receive FFA are covered under Section 504.xiv

Unlike Title III of the ADA, there is no per se exclusion for religious entities under 

Section 504. 

It is also important to recognize the high bar for proving intentional discrimination, which 

is required as a predicate to seeking monetary damages under Section 504 and Section 

1557. Proving intentional discrimination requires a showing of “deliberate indifference.”xv

The United States Court of Appeals for the Eleventh Circuit summarized the deliberate 

indifference standard by contrasting it with negligence: 

Deliberate indifference requires knowledge that a federally protected right is likely 

to be harmed and a failure to act upon that likelihood. Negligence, even if gross, 

cannot constitute deliberate indifference. For conduct to be deliberately 

indifferent, there must be both knowledge of likely harm and failure to act on the 

part of a policymaker, that is, someone capable of making an “official decision” 

on behalf of the organization. xvi

For example, “Circuit Courts have held that when a hospital maintains a policy to 

accommodate deaf patients, the hospital staff knows about the policy and the 

availability of auxiliary aids, and the hospital staff attempts to accommodate the deaf 

patient, the hospital does not act with deliberate indifference to a patient's RA rights, 

even if the requested accommodation is not quickly, or ever, supplied.”xvii “However, a 

hospital that simply has a policy and auxiliary aids, however, but ignores deaf patients' 

requests for accommodation or withholds access to auxiliary aids, acts with deliberate 

indifference to a patient's rights under the [RA].”xviii

Another possible consequence of Cummings is that it may be extended to private rights 

of action under Title II of the ADA following the prior holding in Barnes that “remedies for 

violations of § 202 of the ADA and § 504 of the [RA] are coextensive with the remedies 

available in a private cause of action brought under Title VI of the Civil Rights Act of 

1964.”xix Justice Breyer noted in his dissent in Cummings, “[T]he Court's decision today 

will affect the remedies available under all four of these statutes [including Section 

1557], impacting victims of race, sex, disability, and age discrimination alike.”xx Because 

the ADA is not Spending Clause legislation like Section 504, however, the contract law 

analogy used to limit available remedies under Barnes and Cummings should not be 

extended to Title II of the ADA. 
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Barnes held that the prohibition on punitive damages under Section 504 are 

“coextensive” with remedies under Title VI of the Civil Rights Act and therefore under 

Title II of the ADA. In other words, the prohibition on Section 504 can be applied to the 

ADA. After Cummings, there is a potential that the prohibition on emotional distress 

damages may be extended to Title II despite the irrelevance of the contract law analogy 

employed in Cummings to legislation based on the Fourteenth Amendment such as the 

ADA. The extension of Cummings’ ban on emotional distress damages to the ADA 

could be supported by the text of the ADA itself, which specifies that remedies available 

under the RA are the same for Title II of the ADA.xxi Absent legislation action, federal 

court interpretations of Cummings in future cases will determine if such an extension to 

Title II is made. 

The decision in Cummings addressed the issue of emotional distress damages in the 

context of lawsuits brought under Section 504 and Section 1557, but there is significant 

concern that its reasoning in Cummings could also foreclose the availability of these 

damages under other federal antidiscrimination statutes. Justice Breyer noted in his 

dissent in Cummings: 

The Rehabilitation Act (prohibiting disability discrimination) and the Affordable 

Care Act (prohibiting race, sex, disability, and age discrimination) expressly 

incorporate the rights and remedies available under Title VI. 29 U. S. C. 

§794a(a)(2); 42 U. S. C. §18116(a). We have treated these statutes as providing

“coextensive” remedies. Barnes, 536 U. S., at 185. Thus, the Court’s decision

today will affect the remedies available under all four of these statutes, impacting

victims of race, sex, disability, and age discrimination alike..xxii

Therefore, Cummings raises the possibility that damages could be similarly limited 

under these other civil rights statutes, with particular concern for Title VI of the Civil 

Rights Act. At present, the statutory text in Section 504, Section 1557, Title VI, and Title 

IX of the Education Act of 1972,xxiii do not specify the availability of compensatory relief 

for emotional harm, for punitive damages, or any other relief apart from attorney’s fees. 

Nor does the text of these statutes explicitly foreclose certain types of relief. The Age 

Discrimination Act also lacks text addressing relief in a private suit. The Supreme 

Court’s Barnes and Cummings decisions are efforts to fill in the blanks in civil rights 

statutes because Section 504, Section 1557, the ADA and also Title VI are silent on the 

scope of available damages for violations of those laws. This silence enables the Court 

to utilize a strained contract law analogy that reduces people who endure intentional 

discrimination to simply third-party beneficiaries of federal antidiscrimination laws, rather 

than direct beneficiaries, for whom federal antidiscrimination protection is directed. 

B. Damages for Breach of Contract

In Barnes, the Court was “filling in the blanks” in an antidiscrimination statute – Section 

504 - that did not explicitly include guidance about the kinds of damages available. This 

was also the goal in Cummings, where the statutes involved do not explicitly articulate 

the types of damages available in lawsuits brought by private plaintiffs asserting 

violations of those laws. To fill in the blanks in the statutes, the Court’s analysis in the 
12

earlier Barnes case first determined what damages should be available under Spending 

Clause statutes like Section 504 and looked to contract law for an analogous 

situation.xxiv In effect, the Court treated federal fund disbursements under the Spending 

Clause as a “contract” between the government and recipients of government funds by 

which the recipient agrees to abide by the antidiscrimination provisions in return for the 

receipt of the FFA. Some of the terms of this “contract” were unspecified in the 

underlying legislation, in particular the remedies that should be made available to 

people harmed by breaches of this “contract” between the government and recipients of 

FFA. Instances of discrimination against people with disabilities under Section 504 are 

“breaches” of this contract. 

Applying the analogy from contract law, the Barnes Court determined that a recipient of 

federal funds which violates the antidiscrimination provisions should pay certain 

monetary damages to the person subject to the discrimination. Such person who is 

protected against discrimination is known as an indirect or “third-party beneficiary” of the 

Spending Clause “contract” between the federal government and the FFA recipient. 

Treating Spending Clause statutes as analogous to a contract between the government 

and the funded entity, the Court carried the contract law analogy a step further to 

analyze what specific types of damages should be available to people or entities when 

FFA recipients failed to follow the rules of their “contract,” that is, when they discriminate 

against people with disabilities. This contract rules analysis adopted by the Court also 

apply to other antidiscrimination statutes based on receipt of federal funds, notably Title 

VI of the Civil Rights Act and Title IX of the Education Act, also enacted under Spending 

Clause authority. 

In Barnes, the issue at stake was whether punitive damages should be available under 

Section 504, and in that case by extension to Title II of the ADA. Following previous 

Supreme Court cases, the Barnes Court used the contract analogy to determine 

whether the recipient of federal funds would have agreed to accept the funds if the 

recipient had known it would be subject to punitive damages. The Court concluded that, 

because punitive damages are not “compensatory” for a breach of a contract provision, 

they are not “traditionally available” under breach of contract claims. Punitive damages 

go beyond merely compensating contract recipients for damages incurred by a breach 

of the contract, imposing additional penalties as punishment for the breach. The Court 

claimed that, “Not only is it doubtful that funding recipients would have agreed to 

exposure to such unorthodox and indeterminate liability; it is doubtful whether they 

would even have accepted the funding if punitive damages liability was a required 

condition.”xxv In the Barnes’ Court’s view, punitive damages are wholly unanticipated 

penalties for a contract breach. “When a federal-funds recipient violates conditions of 

Spending Clause legislation, the wrong done is the failure to provide what the 

contractual obligation requires; and that wrong is “made good” when the recipient 

compensates the Federal Government or a third-party beneficiary (as in this case) for 

the loss caused by that failure.”xxvi

In Cummings, the Court stretched the Barnes contract law analogy. In Cummings, the 

Court looked at what it considered to be the “usual contract remedies” in a breach of 

contract case to determine whether emotional injuries could be available under the RA 
13

and the ACA. This is a somewhat subtle shift from the Barnes “traditionally available” 

contract remedies approach. The language “usual contract remedies” is not found in 

Barnes, but the Cummings Court repeatedly cited to Barnes for support of the 

proposition that an analysis of the “usual contract remedies” standard utilized in 

Cummings is essentially synonymous with the term “traditionally available” used in 

Barnes. It appears likely that the Cummings Court needed to use slightly different 

language (“usual contract remedies”) to exclude emotional damages because the 

Barnes “traditionally available” language would not necessarily have supported the 

Cummings holding. In fact, emotional distress damages are “traditionally available” 

compensatory damages in many non-commercial contract cases. The use of the term 

“usual contract remedies” indicates that the Court is further limiting available damages 

beyond the Barnes holding, which barred only punitive damages. 

In Barnes, punitive damages were ruled as unavailable under the Spending Clause 

because punitive damages are not considered to be compensatory damages, stating 

that “punitive damages, unlike compensatory damages and injunction, are generally not 

available for breach of contract.”xxvii But “emotional distress” damages are 

compensatory damages of the sort that are available in certain breach of contract 

cases, those in which “serious emotional disturbance was a particularly likely result.”xxviii

Cummings holds that, even though emotional damages are compensatory, they are not 

the “usual” compensatory damages available under contract law. 

The shift from “traditionally available” in Barnes to “usual contract remedies” in 

Cummings allows the Cummings Court to both distinguish and expand the holding from 

Barnes that compensatory damages are in fact “traditionally available” under Spending 

Clause statutes while maintaining the contract analogy analysis. The Cummings Court 

then had to argue that, although the earlier Barnes precedent established that 

compensatory damages are traditionally available in contract cases, certain 

compensatory damages (those awarded as compensation for emotional distress) are 

not “usual.” This analysis complicates the contract analysis for people with disabilities 

seeking to determine what redress is possible after experiencing intentional 

discrimination. 

C. Notice to Federal Funds Recipients of Potential Liability 

The Supreme Court stated in Barnes, using the Spending Clause contract analogy, that 

a remedy for a breach of the antidiscrimination provisions is an “appropriate remedy . . . 

only if the funding recipient is on notice that by accepting federal funding, it exposes 

itself to liability of that nature.”xxix 

The Barnes Court noted: 

We have acknowledged that compensatory damages alone “might well exceed a 

recipient's level of federal funding,” [citations omitted]... ; punitive damages on 

top of that could well be disastrous. Not only is it doubtful that funding recipients 

would have agreed to exposure to such unorthodox and indeterminate liability; it 
14

is doubtful whether they would even have accepted the funding if punitive 

damages liability was a required condition.xxx

But the Cummings decision asserts that not all compensatory damages are “usual”: 

Hornbook law states that emotional distress is generally not compensable in 

contract. Under Barnes, the Court cannot treat federal funding recipients as 

having consented to be subject to damages for emotional distress, and such 

damages are accordingly not recoverable.” 

But are emotional distress damages “usual contract remedies,” even if the Cummings 

Court held they are not? The Court cites “the adverbs Barnes repeatedly used, requiring 

that a remedy be “traditionally available,” “generally ... available,” or “normally available 

for contract actions.”xxxi The Court finds these terms to be synonymous with “usual 

contract remedies” and that emotional distress damages are not “usual” for breaches of 

contract. 

Emotional distress damages clearly are traditionally available in certain situations for 

breaches of contract, but these matters are typically non-commercial contract cases. In 

2007 the Eleventh Circuit in Sheely v. MRI Radiology Network, P.A., xxxii considering 

emotional distress damages under Section 504 decision, cited to a 1957 Michigan state 

supreme court decision in Stewart v. Rudnerxxxiii to distinguish between remedies in 

commercial contract versus non-commercial contract cases: 

It is true, in the ordinary commercial contract, damages are not recoverable for 

disappointment, even amounting to alleged anguish, because of breach. Such 

damages are ... too remote. But these are contracts entered into for the 

accomplishment of a commercial purpose. Pecuniary interests are paramount .... 

[I]t has long been settled that recovery therefor was not contemplated by the 

parties as the natural and probable result of the breach. Yet not all contracts 

are purely commercial in their nature. Some involve rights we cherish, 

dignities we respect, emotions recognized by all as both sacred and 

personal. In such cases the award of damages for mental distress and 

suffering is a commonplace .... 

The Michigan Stewart court addressed directly the then-developing trend toward 

awarding emotional distress damages in contract cases: 

We are therefore left to determine the question here presented according to 

the rules of the common law applicable to actions for damages for breach of 

contract. In such actions, can damages be recovered for mental suffering 

resulting from a breach of the contract? ...Although the law in this field is in a 

state of marked transition and fluidity, is is [sic] [it] not too early to state that 

there is a marked trend towards recovery. There was a day, as we noted 

above, when the prevention of ‘private warfare’ fulfilled the highest function of 

the court, when a visibly cracked skull was a sine qua non for recovery, but 

the precedents of that era no longer control. We have come to realize, slowly 
15

it is true, that the law protects interests of personality, as well as the physical 

integrity of the person, and that emotional damage is just as real (and as 

compensable) as physical damage.xxxiv

The Eleventh Circuit in Sheely goes on to cite numerous federal appellate and 

district cases to support its holding that “As a matter of both common sense and 

case law, emotional distress is a predictable, and thus foreseeable, consequence of 

discrimination. Certainly, federal courts have long found that violations of the RA 

and other antidiscrimination statutes frequently and palpably result in emotional 

distress to the victims.”xxxv Of particular note, the Eleventh Circuit mentioned: 

 Bogle v. McClure (11th Cir.):xxxvi affirming award of emotional damages for race 

discrimination in violation of 42 U.S.C. § 1983, where plaintiffs testified to having 

felt “embarrassed, humiliated, stunned, confused, angry, frightened, discouraged, 

and betrayed,” with one testifying, “I can't begin to tell you what a toll it has taken 

on me. To be an active and producing person and then to suddenly be just put on 

the shelf and made to sit there through no purpose of my own or no doing of my 

own, I could not help that I was hurt.” 

 Stallworth v. Shuler (11th Cir.):xxxvii upholding award of emotional damages under 

§§ 1981 and 1983 of the Civil Rights Act, noting that “[t]he injury in civil rights 

cases may be intangible as here. It need not be financial or physical but may 

include damages for humiliation and emotional distress.” 

 Odom v. East Ave. Corp (N.Y. Supreme Court):

xxxviii awarding emotional 

damages to African–American hotel guests denied service at hotel restaurant 

because of their race. 

In the Fifth Circuit decision rejecting emotional damages in Cummings, the holding 

affirmed by the Supreme Court’s subsequent review of that decision, the court rejected 

the Sheely analysis. The Fifth Circuit argued that Sheely was premised on the 

“foreseeability” of emotional distress damages, supported by the Restatement (Second) 

of Contracts § 351 “that ‘[d]amages are not recoverable for loss that the party in breach 

did not have reason to foresee as a probable result of the breach when the contract was 

made.’”xxxix The Fifth Circuit in Cummings goes on to note: 

[W]hether funding recipients can foresee a consequence of a particular “breach” 

of a Spending Clause “contract” is not the same as whether they are “on notice” 

that, when they accepted funding, they agreed to be liable for damages of this 

kind. Barnes addressed the “on notice” issue, finding that federal funding 

recipients couldn't “foresee” their liability for punitive damages for a breach of 

Spending Clause “contract,” because such damages are generally unavailable 

under contract law. Nowhere in Barnes does the Court condone Sheely’s strand 

of “foreseeability.” 

Yet Barnes stated that compensatory damages are available under Title IX and implied 

they are available under the RA, arguably utilizing “Sheely’s strand of ‘foreseeability.’”xl
16

Following prior decisions, the Barnes Court stated that compensatory damages (in 

contrast to punitive damages) were “foreseeable” to recipients of federal funds and they 

were therefore “on notice” that they would be liable for compensatory damages, but not 

punitive damages. In Cummings, both the Fifth Circuit and the Supreme Court assert 

that recipients of federal funds lack “notice” of their liability for certain compensatory 

damages (emotional distress) even though such damages are foreseeable outcomes of 

their violations of the RA and on that basis are frequently awarded in other breach of 

contract cases.xli

What is the meaningful distinction between an ability to “foresee that a patient might 

suffer an emotional injury as a result of its actions” and an entity being “on notice” that it 

will be held liable for such injuries? The Michigan Court in Stewart and the Eleventh 

Circuit in Sheely understood that, in non-commercial contracts, “the award of damages 

for mental distress and suffering is commonplace.”xlii But under the Supreme Court’s 

Cummings holding, such damages are not considered to be among the “usual contract 

remedies” and are not “commonplace.” Although the Fifth Circuit rejected the Sheely

holding in Cummings, the distinction between recognizing that there could be 

foreseeable damages caused by a breach of an agreement to comply with 

antidiscrimination laws and denying that the entity was “on notice” that such damages 

would be awarded is strained from an equity perspective. The holding that a recipient of 

FFA commits itself to nondiscriminatory practices as a condition of receiving federal 

funds would later claim it was in fact not “on notice” it could be held liable for damages 

for violation of federal antidiscrimination laws is contradictory on its face. This is 

particularly true for institutional enrolleesxliii of the Medicare program who, as a condition 

of Medicare Part A enrollment and continued participation in the Medicare program, are 

required to obtain a civil rights clearance from the U.S. Department of Health and 

Human Services Office of Civil Rights by submitting an assurance of compliance with 

civil rights requirements, among them Section 504 and Section 1557.xliv

D. State Courts Commonly Allow for Emotional Distress Damages in Contract 

Cases 

The Supreme Court in Cummings asserted that recovery for emotional distress 

damages is not among the “usual contract remedies” for breach of contract. Most 

contract disputes are litigated in state courts, which is where the Cummings Court 

presumably looked to determine which contract remedies are “usual.”xlv There has been 

a split among state courts regarding whether compensatory damages for reasonably 

foreseeable mental anguish or emotional distress are recoverable for breach of 

contract, but certainly emotional distress remedies are available in a large number of 

states.xlvi The American Law Reports (ALR) compendium includes two categories of 

cases under separate “Rules”: 

Section § 3 “Rule that compensatory damages for mental anguish or emotional 

distress are generally not recoverable for breach of contract” and 

Section § 4 “Rule that compensatory damages for reasonably foreseeable mental 

anguish or emotional distress are recoverable for breach of contract.” xlvii
17

There are numerous examples, some dating back more than a century, supporting 

Section 4 in a wide range of contract scenarios: 

 In Louisville & N. R. Co. v Hull (1902),xlviii although overturning on other grounds, 

the court issued a judgment for the plaintiff widower who sued the defendant 

railroad for the negligent breach of a contract to ship his dead wife's corpse, 

indicating that damages for mental anguish may be recovered for the breach of a 

contract where such damages naturally resulted from a wrongful act and were 

fairly within the reasonable contemplation of the contracting parties. 

 In Kismarton v. William Bailey Construction (2001), the Ohio Supreme Court held 

that emotional distress damages are even available in a building contract: 

Though proof of emotional distress damages in these cases will be 

difficult, we are convinced that wronged parties are constitutionally entitled 

to an opportunity to recover for emotional distress damages.xlix

 In Matherne v. Barnum (2012),l upholding application of a Louisiana Code 

statute, Damages for nonpecuniary loss: 

Damages for nonpecuniary loss may be recovered when the contract, 

because of its nature, is intended to gratify a nonpecuniary interest and, 

because of the circumstances surrounding the formation or the 

nonperformance of the contract, the obligor knew, or should have known, 

that his failure to perform would cause that kind of loss. Regardless of the 

nature of the contract, these damages may be recovered also when the 

obligor intended, through his failure, to aggrieve the feelings of the 

obligee.li

Cummings does not implicate state laws regarding contract interpretation in the context 

of emotional distress damages or state anti-discrimination statutes. The Supreme Court 

however, seems to have disregarded that breach of contract can result in emotional 

distress damages. 

E. The Challenge of Securing Injunctive Relief When Emotional Distress 

Damages are Not Available 

In the wake of the Cummings decision, many potential plaintiffs may pursue injunctive 

relief as a means to challenge discriminatory practices under Section 504 or Section 

1557, even without the prospect of securing money damages. Unfortunately, these 

potential plaintiffs will face significant challenges in establishing standing to file and 

maintain a suit under the standard established under Lujan v. Defenders of Wildlifelii: 

First, the plaintiff must have suffered an “injury in fact”— an invasion of a legally 

protected interest which is (a) concrete and particularized, ... and (b) “actual or 

imminent, not ‘conjectural’ or ‘hypothetical’... Second, there must be a causal 

connection between the injury and the conduct complained of ... Third, it must be 
18

“likely,” as opposed to merely “speculative,” that the injury will be “redressed by a 

favorable decision.” 

Plaintiffs must establish a likelihood of future harm from a discriminatory practice -- 

beyond experiencing prior discrimination -- to establish standing in federal court under 

Article III of the U.S. Constitution for injunctive relief purposes. This issue arises 

frequently in the ADA Title III context, where damages are unavailable but where people 

with disabilities often seek prospective injunctive relief in the face of inaccessible 

facilities or discriminatory practices. In cases similar to Cummings that involved access 

to interpreting services in a medical setting, plaintiffs unsuccessfully sought injunctive 

relief under Title III of the ADA: 

 A Deaf plaintiff did not have standing to seek injunctive relief against a hospital, 

that failed to provide effective communication to plaintiff, who arrived in 

emergency room because of husband's fatal cardiac arrest.liii

 A Deaf plaintiff who sought injunctive relief after she had visited a hospital where 

no sign language interpretation was provided was denied relief: “A plaintiff's 

intention to return to defendant's place of public accommodation ‘some day’ ... 

without any description of concrete plans, or indeed even any specification of 

when the some day will be - do not support a finding of the requisite actual or 

imminent injury.” (citing Lujan, 504 U.S. at 564 [112 S. Ct. 2130]) The court 

further noted, “[T]he substantive standards for determining liability under the 

Rehabilitation Act and the ADA are the same.”liv

People with other kinds of disabilities face the same dilemma when seeking prospective 

injunctive relief after experiencing intentional discrimination. For example, a person with 

a serious mental illness who is turned away from a medical care facility due to 

perceived generalized concerns over potential behavioral issues is unlikely to return to 

that facility. Similarly, a person with an intellectual disability is unlikely to return to a 

facility where she has been demeaned or mistreated by medical staff. But even a history 

of discrimination in a particular location or setting will not confer a plaintiff standing for 

injunctive relief under either Section 504 or Title III of the ADA to challenge likely 

discrimination in the future without proof of the likelihood the person will return to the 

same location under similar circumstances. This is a challenging standard for most 

plaintiffs seeking to prevent future acts of discrimination. 
19

III. Impact of the Cummings Decision on People with Disabilities 

Through the Cummings decision the Court removed an important tool available to 

remedy and ultimately deter discrimination against people with disabilities by entities 

which receive federal funds. The decision sets-up differing standards based on statelaw, which will create additional obstacles to addressing systemic and intentional 

disability-based discrimination by entities only covered under Section 504 or Section 

1557, and will ultimately reduce the impact of these laws in reducing incidents of 

discrimination based on disability. 

A. Immediate Impact 

Following the Cummings decision, disability advocates have learned of cases in which 

attorneys declined representation since potential plaintiffs lacked damages other than 

emotional distress or have had to dismiss cases where emotional distress damages 

were the sole remedy sought. As with Cummings itself, the decision will have a 

particularly negative impact on deaf persons, especially in interaction with law 

enforcement. In one case a deaf mother was having problems with her son was 

arrested when police arrived without an American Sign Language interpreter to 

communicate with her. The mother mistakenly thought the police were there to assist 

her with the son when in fact they were investigating possible abuse. An attorney 

declined to represent the woman after Cummings because there were no other 

damages. Similarly, a deaf man was arrested and remained in jail for 5 days without 

communication and without police informing him they had an interpreting service 

available. Again, an attorney declined representation since the lack of communication 

caused emotional distress but no other damages. 

Other examples of past Section 504 claims involving emotional distress claims that 

would likely now be foreclosed by the Cummings decision include several Colorado 

cases involving deaf individuals encounters with law enforcement that were settled with 

damages awards for the emotional distress caused by the discriminatory actions of 

police in failing to provide interpreters. In Ulibarri v. City and County of Denver,lv two 

clients who received a damages settlement that might be imperiled by the Cummings

decision: 

 Plaintiff Sarah Burke was Deaf mother with a very minor warrant, cooking dinner 

at home with kids. The police showed up to enforce the warrant. Ms. Burke 

asked for a sign language interpreter. Even though there was no urgency, 

resistance, or danger, the police refused and asked her 8-year-old child to 

interpret. They then arrested Ms. Burke and took her away cuffed behind her 

back. One of the things she was trying to communicate was that she needed 

medication for diabetes, which she was ultimately not able to bring with her. 

 Plaintiff Roger Krebs was a Deaf man traveling by bus through Denver on his 

way to his home in Utah. He was arrested as a result of an altercation in the bus 

stop and denied an interpreter during his arraignment. 
20

Defendants in similar cases, where economic compensatory damages are small, will 

now likely not settle because of the limited potential damages available, which will not 

include recovery for emotional distress. 

Other cases from Colorado involve failures to provide interpreters by hospitals and 

rehabilitation and behavioral health facilities: 

 Client in a confidential case was a Deaf man whose daughter was in a traumatic 

car accident. From before he arrived at the hospital, he began to request a sign 

language interpreter, but the hospital would not provide one, excluding him from 

discussions concerning his daughter’s care. He received a confidential damages 

settlement. 

 Client in a confidential case was a Deaf woman who spent two months in a 

rehabilitation facility without any access to a sign language interpreter. Her reams 

of written notes reveal extensive and frustrating miscommunications concerning 

everything from physical therapy and medication to meal planning and 

recreation. She received a confidential damages settlement. 

 Client in a confidential case was a Deaf woman admitted to an inpatient 

behavioral health facility and denied access to a sign language interpreter for 

most of her nine-day stay. She had interpreters for approximately one hour each 

day, which was not timed to include such activities as meetings with her 

psychiatrist, group therapy, and occupational therapy. She received a 

confidential damages settlement. 

In Arkansas, in a recently resolved case, Disability Rights Arkansas, the state’s 

Protection and Advocacy agency and private counsel represented a secondary schoolaged individual who attended a specialty public school. Prior to his enrollment, he 

informed the school of his significant allergies to certain foods. In response, the school 

assured him that they would adhere to his specific dietary needs and offer alternatives 

to foods that caused him to experience an anaphylactic reaction. 

Within days of being on campus, he was served a meal that contained the specific 

allergens he cannot have. As a result, he was sent by ambulance to the hospital for 

treatment due to his anaphylactic reaction. Over the course of a year, the individual had 

to be rushed to the hospital three more times, with each instance resulting in a response 

from the school promising it would not happen again. The student constantly 

experienced a nagging fear that everything he ate, three meals per day, would cause 

him to be hospitalized. His fears were justified because it happened repeatedly. His 

emotional distress was not truly quantitative, he did not experience increased costs for 

mental health services, but the school’s actions and inactions caused him emotional 

harm. The case ultimately settled for out-of-pocket damages and policy changes the 

regarding school’s food preparation practices to accommodate students with food 

allergies. 
21

The Cummings decision was issued while this case was in litigation, leaving it likely an 

Arkansas jury would only be able to consider reimbursing out-of-pocket medical 

expenses and not damages from the emotional distress he experienced from reliance 

on school staff who repeatedly served him foods that caused anaphylactic reactions. 

The case ultimately settled for out-of-pocket damages and policy changes regarding the 

school’s food preparation practices to accommodate students with food allergies. 

Because the client sustained significant medical bills there was still a viable 

compensatory damages claim but the lack of the potential emotional distress damage 

award significantly reduces the ability of the case to effect systemic change at the 

school. Fortunately, prior to the Supreme Court’s Cummings decision, the Disability 

Rights Arkansas and private co-counsel were able to secure a strong expert analysis 

and set of recommendations, paid for by the school, to ensure it adheres to best 

practices regarding food preparation and allergies. 

B. Remedies Remaining for Emotional Distress Damages under State Law 

As detailed in an NCD review of state human and civil rights laws on compensatory 

damages for emotional distress (see Appendix A), state antidiscrimination laws for nonemployment disability claims include a patchwork of potential remedies. Twenty-five 

states provide for a potential emotional distress damages claims, while eighteen do not 

provide for such damages. Nine states have somewhat ambiguous statutes. It is notable 

that the states that do provide for potential emotional distress damages include some of 

the most populous states, California, New York and Florida, among them. 

State antidiscrimination laws can provide important remedies for people who experience 

discrimination trying to secure medical care or access to other public accommodations. 

These laws can also potentially serve to encourage legal challenges to discriminatory 

practices by providing real incentives for potential plaintiffs, and equally important, 

potential deterrence for covered entities. Unfortunately, even antidiscrimination laws in 

states that provide for emotional distress damages cannot effectively address the gap in 

such damages created under the Cummings decision. Not only are these state statutes 

limited to specific states, but they will not be applicable to securing remedies under 

federal antidiscrimination laws. 
22

IV. Recommendations

1. Congress should enact legislation to address Cummings Decision 

Congress should enact and the President should sign legislation which restores 

emotional distress damages as a remedy under Section 504, Section 1557 and other 

civil rights statutes enacted under the Spending Clause, and which instructs the federal 

courts not to use the contract law analogy when analyzing remedies for discrimination 

under any federal anti-discrimination statute as the most effective way to address the 

Cummings decision. The legislation should ensure that recipients of federal financial 

assistance are put on notice of all potential damages they may be subject to for violation 

of federal antidiscrimination laws against persons with disabilities and others. 

The Court’s contract law analogy in these cases relies on subjective assumptions about 

whether recipients would have agreed to accept federal funds had they known they 

would be potentially liable for punitive damages and emotional distress compensatory 

damages to victims of intentional discrimination. In Barnes, the Court claimed it is 

“doubtful whether they [federal funds recipients] would have agreed to exposure to such 

unorthodox and indeterminate liability.”lvi In Cummings, the Court asserts that recipients 

“lacked notice” of their liability for emotional distress. The emphasis in Cummings and 

Barnes is on fairness for funds recipients rather than for people subjected to 

discrimination, who presumed that they would not be discriminated against by such 

entities. They also believed that if discrimination occurred they would be appropriately 

compensated for violations of their civil rights. The simplest way to reverse these 

decisions would be to legislatively fill in the blanks that the Court took upon itself to 

complete. 

The Cummings Court cites Arlington Cent. School Dist. Bd. of Educ. v. Murphy,

lvii a 

2006 Supreme Court decision on the issue of state liability for expert fees in Individuals 

with Disabilities Education Act (IDEA) cases, as precedent for its analysis of the “clear 

notice” notice requirement in Spending Clause cases. In Arlington, the Court held that 

“Congress has broad power to set the terms on which it disburses federal money to the 

States ... but when Congress attaches conditions to a State's acceptance of federal 

funds, the conditions must be set out ‘unambiguously.’”lviii Congress failed to specify 

whether damages are available at all in each of these statutes, much less the types of 

remedies that can be awarded for violations of the statutes. This has left the Supreme 

Court in the position of filling in the blanks, leading to negative results for plaintiffs under 

Barnes, Cummings and Arlington. As Justice Kavanaugh noted in his concurring opinion 

in Cummings, “Congress, not this Court, creates new causes of action.”lix

Legislative reforms should address the issue of available remedies in all four of these 

statutes (Section 504, Section 1557, Title VI, and Title IX) in one piece of legislation. 

That legislation should articulate the nature of available remedies in unambiguous 

terms. Arguably, an amendment to Title VI of the Civil Rights Act alone would alter the 

availability of remedies in the other three statutes, given that their remedies “expressly 

incorporate the rights and remedies available under Title VI.”lx
23

2. Federal agencies should include notice in grant awards that recipients are 

subject to specific damages for violations of Section 504 

The Cummings decision highlights the importance the Supreme Court places on notice 

to recipients when interpreting federal antidiscrimination statutes enacted pursuant to 

Congressional Spending Clause legislation. The Court has frequently emphasized that 

a recipient of federal funds must be on notice about the potential liability the recipient 

faces by accepting federal aid.lxi The Cummings Court emphasized that the recipients 

lacked “clear notice” they could be subject to private right of action seeking emotional 

distress damages. 

In order to provide sufficient notice to recipients of federal financial assistance about 

potential liability, all federal agencies should clearly state in all applications for federal 

funds and notice of awards, and by other means appropriate, that recipients are subject 

to specific damages for a violation of Section 504, Section 1557, Title VI or Title IX. 

 
24

Appendix A: 2022 Review of State Human and Civil Rights Laws: 

Compensatory Damages (Emotional Distress) 

Damages Terminology and Variance by State 

NCD reviewed state human and civil rights laws to determine if they had (1) a public 

accommodation section, and, if so, (2) whether disability was a protected class, and (3) 

whether Emotional Distress damages are allowed for prevailing complainants in 

administrative actions or plaintiffs in a civil action. 

Emotional Distress damages are a type of Compensatory damages. Compensatory 

damages are categorized as either special or general. Special damages often have a 

firm dollar figure attached to them. Medical bills, lost income due to time off work, 

property loss and damage, and out-of-pocket expenses related to the incident. General 

damages include items like emotional distress, pain and suffering, mental illness, and 

anxiety that are related to the injury in question.lxii Actual damages are synonymous with 

Compensatory damages.lxiii 

State laws and regulations vary in the terms they use for describing damages. 

research, no state law used the terms “special” or “general” compensatory damages, 

only to “Compensatory” and “Actual.” 

I. States and Territories that Allow Compensatory/Actual Damages for Disability

Discrimination by Public Accommodations

Arkansas 

Any person who is injured by an intentional act of discrimination in violation of 

subdivisions (a)(2)-(5)(includes public accommodations) of this section shall have a civil 

action in a court of competent jurisdiction to enjoin further violations, to recover 

compensatory and punitive damages, and, in the discretion of the court, to recover the 

cost of litigation and a reasonable attorney's fee. AR Code 16-123-107(b). 

https://law.justia.com/codes/arkansas/2015/title-16/subtitle-7/chapter-123/subchapter1/section-16-123-107/ 

California

CA Civ Code §52(a): Whoever denies, aids or incites a denial, or makes any 

discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and 

every offense for the actual damages, and any amount that may be determined by a 

jury, or a court sitting without a jury, up to a maximum of three times the amount of 

actual damage but in no case less than four thousand dollars ($4,000), and any 
25

attorney’s fees that may be determined by the court in addition thereto, suffered by any 

person denied the rights provided in Section 51, 51.5, or 51.6. 

(h) For the purposes of this section, “actual damages” means special and general 

damages. This subdivision is declaratory of existing law. 

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=52.&no

deTreePath=6.2&lawCode=CIV

Delaware 

No private action allowed under public accommodations law. State human relations 

procedure. 

If the panel determines that a violation of §4504 of this title has occurred, it shall issue 

an order stating its findings of fact and conclusions of law and containing such relief as 

may be appropriate, including actual damages suffered by the aggrieved person 

“including damages caused by humiliation and embarrassment,” costs, expenses, 

reasonable attorneys’ fees and injunctive or other equitable relief. Title 6 §4508(h). 

https://delcode.delaware.gov/title6/c045/

District of Columbia 

The payment of compensatory damages to the person aggrieved by such practice. 

§ 2–1403.13(a)(1)(D) 

https://code.dccouncil.us/us/dc/council/code/titles/2/chapters/14/units/A/subchapters/II/p

arts/D/

Florida 

In any civil action brought under this section, the court may issue an order prohibiting 

the discriminatory practice and providing affirmative relief from the effects of the 

practice, including back pay. The court may also award compensatory damages, 

including, but not limited to, damages for mental anguish, loss of dignity, and any other 

intangible injuries, and punitive damages. Title XLIV 760.11(5) 

https://www.flsenate.gov/Laws/Statutes/2019/0760.11

Idaho 

In a civil action filed by the commission or filed directly by the person alleging unlawful 

discrimination, if the court finds that unlawful discrimination has occurred, its judgment 
26

shall specify an appropriate remedy or remedies therefor. Such remedies may include, 

but are not limited to...(c) An order for actual damages ...67-5908(3) 

https://legislature.idaho.gov/wpcontent/uploads/statutesrules/idstat/Title67/T67CH59.pdf 

Indiana 

The state code allows state human rights commission and state courts to award actual 

damages for discriminatory treatment by public accommodations, but limiting them in 

employment discrimination complaints. 

The commission may restore complainant's losses incurred as a result of discriminatory 

treatment, as the commission may deem necessary to assure justice... IC 22-9-1-6 

(k)(A). 

[The commission may] order payment of actual damages, except that damages to be 

paid as a result of discriminatory practices relating to employment shall be limited to lost 

wages, salaries, commissions, or fringe benefits. IC 22-9-1-12.1 (c)(8). 

A court may provide the same remedies to a prevailing plaintiff as the state human 

rights commission. IC 22-9-1-17(b). 

https://www.in.gov/icrc/files/ch1.pdf

Kansas 

No right to civil action found for public accommodations discrimination. Human rights 

commission awards damages in hearing process.

If the presiding officer finds a respondent has engaged in or is engaging in any 

...unlawful discriminatory practice as defined in this act, the presiding officer shall 

render an order ... Such order may also include an award of damages for pain, suffering 

and humiliation which are incidental to the act of discrimination, except that an award for 

such pain, suffering and humiliation shall in no event exceed the sum of $2,000. KS 44-

1005(k). 

http://www.kslegislature.org/li_2018/b2017_18/statute/044_000_0000_chapter/044_010

_0000_article/044_010_0005_section/044_010_0005_k/

Maine 

Compensatory damages between 50k and 500k depending on size of public 

accommodation. Can be ordered by human rights commission or by a court after filing 

with human rights commission. 
27

https://www.mainelegislature.org/legis/statutes/5/title5sec4613.html

https://www.mainelegislature.org/legis/statutes/5/title5sec4622.html

Maryland 

Sec. 14.03.01.13 (E) Remedies. If the court determines that the respondent has 

engaged in a discriminatory practice, the court may provide remedies as specified in 

State Government Article, §20-1009(b), Annotated Code of Maryland. 

§20-1009(b) allows for compensatory damages between 50k and 300k.

http://mdrules.elaws.us/comar/14.03.01.13

https://codes.findlaw.com/md/state-government/md-code-state-govt-sect-20-1009.html

Michigan 

No private right of action found or in commission procedure, but emotional distress 

damages were available in an administrative hearing. https://www.michigan.gov/mdcr/-

/media/Project/Websites/mdcr/mcrc/decisions/bercheni.pdf?rev=ba83c4d0d29f4ea7b52f

ecb8aa8ca74c&hash=D239CCA8134210631604DF17E7E685BE

Minnesota 

MN allows state human rights commission to award actual damages, specific to 

emotional distress. 

In all cases where the administrative law judge finds that the respondent has engaged 

in an unfair discriminatory practice, the administrative law judge shall order the 

respondent to pay an aggrieved party, who has suffered discrimination, compensatory 

damages in an amount up to three times the actual damages sustained. In all cases, the 

administrative law judge may also order the respondent to pay an aggrieved party, who 

has suffered discrimination, damages for mental anguish or suffering, in addition to 

punitive damages in an amount not more than $8,500. §363A.29. Subd. 4. 

https://law.justia.com/codes/minnesota/2006/363-363A/363A/363A_11.html

Missouri 

The Missouri Human Rights Act allows a court to award actual damages, including 

mental anguish (emotional distress) but caps them based on size of business. 
28

213.111. Right to civil action, when — relief available — costs and attorney's fees, 

awarded when — right to trial by jury — maximum damages — burden of proof, 

employment-related civil actions. 

2. The court may grant as relief, as it deems appropriate, any permanent or temporary

injunction, temporary restraining order, or other order, and may award to the plaintiff

actual and punitive damages, and may award court costs and reasonable attorney fees

to the prevailing party, other than a state agency or commission or a local commission;

except that, a prevailing respondent may be awarded reasonable attorney fees only

upon a showing that the case was without foundation.

4. The sum of the amount of actual damages, including damages for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary losses, and punitive damages awarded under this section

shall not exceed for each complaining party.... 

https://revisor.mo.gov/main/OneSection.aspx?section=213.111&bid=34599&hl=

New Hampshire

New Hampshire awards compensatory damages in both administrative and judicial 

venues. 

Compensatory damages are available in administrative hearing. §354-A:21(d) 

...A court in cases so removed may award all damages and relief which could have 

been awarded by the commission, except that in lieu of an administrative fine, 

enhanced compensatory damages may be awarded when the court finds the 

respondent's discriminatory conduct to have been taken with willful or reckless 

disregard of the charging party's rights under this chapter. §354-A:21-a(I). 

http://gencourt.state.nh.us/rsa/html/XXXI/354-A/354-A-mrg.htm

New Jersey 

Civil action remedies include compensatory damages, damages for pain & humiliation 

https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/divisionon-civil-rights-file-a-complaint/ 

New Mexico 

The commission may require the respondent to pay actual damages to the complainant 

and to pay reasonable attorneys' fees. NM Code §28-1-11(E). 

https://law.justia.com/codes/new-mexico/2021/chapter-28/article-1/section-28-1-11/ 
29

New York 

If, upon all the evidence at the hearing, the commissioner shall find that a respondent 

has engaged in any unlawful discriminatory practice as defined in this article (public 

accommodations included), the commissioner shall state findings of fact and shall issue 

and cause to be served on such respondent an order...including such of the following 

provisions as in the judgment of the division will effectuate the purposes of this article: 

... (iii) awarding of compensatory damages to the person aggrieved by such 

practice...NYCL EXC §297(4)(c). 

https://www.nysenate.gov/legislation/laws/EXC/297

Oklahoma 

In an action pursuant to Section 1101 et seq. of this title, if the court finds that a 

discriminatory housing practice has occurred or is about to occur, the court may award 

to the plaintiff: 

1. Actual and punitive damages...O.S. §1503.3(1). 

https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73482

Rhode Island 

Civil liability. (a) Any person with a disability who is the victim of discrimination 

prohibited by this chapter may bring an action in the superior court against the person or 

entity causing the discrimination for equitable relief, compensatory and/or punitive 

damages or for any other relief that the court deems appropriate. § R.I. Gen. Laws § 42-

87-4 (a). 

http://webserver.rilin.state.ri.us/Statutes/TITLE42/42-87/42-87-4.htm

South Dakota 

Right to proceed by civil action in lieu of hearing--Forms of relief available. 

In a civil action, if the court or jury finds that an unfair or discriminatory practice has 

occurred, it may award the charging party compensatory damages. §20-13-35.1. 

https://sdlegislature.gov/Statutes/Codified_Laws/2045748
30

Vermont

The Commission may enforce conciliation agreements and prohibitions against 

discrimination by bringing an action in the name of the Commission seeking any of the 

following: Compensatory and punitive damages on behalf of an aggrieved individual or 

class of individuals similarly situated. 9 V.S.A. § 4553(a)(6)(A)(iii).

https://legislature.vermont.gov/statutes/section/09/141/04553 

Virgin Islands

The Virgin Islands Civil Rights Act (VICRA) allows compensatory damages (emotional 

distress): 

§64 (15) In addition to other remedies, any person who has been discriminated against

as defined in this section may bring an action for compensatory and punitive damages

in any court of competent jurisdiction. The court in such action shall award to the plaintiff

reasonable attorney's fees and costs of the action, in addition to any judgment in favor

of the plaintiff. prohibits discrimination by public accommodations on the basis of race,

creed, color, or national origin. not disability.

Washington 

Any person deeming himself or herself injured by any act in violation of this chapter 

9includes public accommodations) shall have a civil action in a court of competent 

jurisdiction to enjoin further violations, or to recover the actual damages sustained by 

the person.... RCW 49.60.030(2). 

https://app.leg.wa.gov/RCW/default.aspx?cite=49.60.030

West Virginia

The Human Rights Commission may also award incidental damages “as compensation 

for humiliation, embarrassment, emotional and mental distress, and loss of personal 

dignity, without proof of monetary loss. 

https://hrc.wv.gov/about/Documents/Investigative%20Procedure.pdf

Wisconsin 

106.52(4)(e)Civil actions.

1. A person, including the state, alleging a violation of sub. (3) (public

accommodations) may bring a civil action for appropriate injunctive relief, for damages
31

including punitive damages and, in the case of a prevailing plaintiff, for court costs and 

reasonable attorney fees. 

II. States and Territories that Might Allow Compensatory Damages (emotional

distress) for Disability Discrimination by Public Accommodations

Connecticut 

The court may grant a complainant in an action brought in accordance with section 46a100 such legal and equitable relief which it deems appropriate including, but not limited 

to, temporary or permanent injunctive relief, attorney’s fees and court costs. CT Gen 

Stat § 46a-104. 

https://law.justia.com/codes/connecticut/2012/title-46a/chapter-814c/

Illinois 

(775 ILCS 5/10-102)(C) Relief which may be granted. 

(1) In a civil action under subsection (A) if the court finds that a civil rights violation

has occurred or is about to occur, the court may award to the plaintiff actual and 

punitive damages 

https://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=077500050HArt%2E+10&ActID=226

6&ChapterID=64&SeqStart=9200000&SeqEnd=-1 

Iowa 

A court may award a prevailing plaintiff damages that “shall include but are not limited to 

actual damages, court costs and reasonable attorney fees.” Iowa code §216.15(9)(a)(8) 

(Same as what a human rights commission can order: See,§216.16(6)) Does not 

specify the type (general or specific).

https://www.legis.iowa.gov/docs/code/216.15.pdf

Massachusetts 

Not specific on type of damages 

Any person claiming to be aggrieved by a practice made unlawful under this chapter or 

under chapter one hundred and fifty-one C, or by any other unlawful practice within the 

jurisdiction of the commission, may, at the expiration of ninety days after the filing of a 

complaint with the commission, or sooner if a commissioner assents in writing, but not 
32

later than three years after the alleged unlawful practice occurred, bring a civil action for 

damages or injunctive relief 

https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151B/Section9

Montana 

Human Rights Bureau rule does not mention damages or relief other than conciliation.

https://rules.mt.gov/gateway/ChapterHome.asp?Chapter=24.8

MT Human Rights Act allows hearings officer to issue order rectifying any harm, 

financial or otherwise, but no specific reference to damages allowed. 

49-2-506. Procedure upon decision finding discrimination. (1) If the hearings officer

finds that a party against whom a complaint was filed has engaged in the discriminatory

practice alleged in the complaint, the department shall order the party to refrain from

engaging in the discriminatory conduct. The order may:...(b) require any reasonable

measure to correct the discriminatory practice and to rectify any harm, pecuniary or

otherwise, to the person discriminated against;

Ohio 

§ 4112.99. Civil remedies for violation. Whoever violates this chapter is subject to a civil

action for damages, injunctive relief, or any other appropriate relief.

https://law.justia.com/codes/ohio/2006/orc/jd_411299-ddf7.html

Oregon 

Law contains numerous sections that are complex. Oregon’s nondiscrimination law 

allows for recovery of injunctive and other equitable damages, as well as compensatory 

damages and punitive damages for disability discrimination by places of public 

accommodation and the state government, but not against other governmental 

agencies. 

ORS 659A.142 

(4) It is an unlawful practice for any place of public accommodation, resort or

amusement as defined in ORS 659A.400, or any person acting on behalf of such place,

to make any distinction, discrimination or restriction because a customer or patron is an

individual with a disability.

(5)(a) It is an unlawful practice for state government to exclude an individual from 

participation in or deny an individual the benefits of the services, programs or activities 

of state government or to make any distinction, discrimination or restriction because the 
33

individual has a disability. 

(b) Paragraph (a) of this subsection is intended to ensure equal access to available

services, programs and activities of state government.

(c) Paragraph (a) of this subsection is not intended to:

(A) Create an independent entitlement to any service, program or activity of state

government; or

(B) Require state government to take any action that state government can demonstrate

would result in a fundamental alteration in the nature of a service, program or activity of

state government or would result in undue financial or administrative burdens on state

government."

ORS 659A.885. 

(1) Any person claiming to be aggrieved by an unlawful practice specified in subsection

(2) of this section may file a civil action in circuit court. In any action under this

subsection, the court may order injunctive relief and any other equitable relief that may

be appropriate, including but not limited to reinstatement or the hiring of employees with

or without back pay. A court may order back pay in an action under this subsection only

for the two-year period immediately preceding the filing of a complaint under ORS

659A.820 with the Commissioner of the Bureau of Labor and Industries, or if a

complaint was not filed before the action was commenced, the two-year period

immediately preceding the filing of the action. In any action under this subsection, the

court may allow the prevailing party costs and reasonable attorney fees at trial and on

appeal. Except as provided in subsection (3) of this section:

(a) The judge shall determine the facts in an action under this subsection; and

(b) Upon any appeal of a judgment in an action under this subsection, the appellate

court shall review the judgment pursuant to the standard established by ORS 19.415

(3).

(2) An action may be brought under subsection (1) of this section alleging a violation of

(a) . . . 659A.103 to 659A.145 . . . . 

(3) In any action under subsection (1) of this section alleging a violation of ORS . . .

659A.103:

(a) The court may award, in addition to the relief authorized under subsection (1) of this

section, compensatory damages or $200, whichever is greater, and punitive damages;

Texas 

Subject to Section 121.0041, if applicable, the person with a disability deprived of his or 

her civil liberties may maintain an action for damages in a court of competent 

jurisdiction, and there is a conclusive presumption of damages in the amount of at least 

$300 to the person with a disability. Sec. 121.004(b) 

https://statutes.capitol.texas.gov/Docs/HR/htm/HR.121.htm#121.004
34

Utah

Any person who is denied the rights provided for in Section 13-7-3 shall have a civil 

action for damages and any other remedy available in law or equity against any person 

who denies him the rights provided for in Section 13-7-3 or who aids, incites or 

conspires to bring about such denial. Section 13-7-4(3). 

https://le.utah.gov/xcode/Title13/Chapter7/13-7-S4.html 

III. States and Territories that Do Not Allow Compensatory Damages (emotional 

distress) for Disability Discrimination by Public Accommodations

Alabama 

Follows federal laws, no state complaint process for disability discrimination in public 

accommodations. 

https://dhr.alabama.gov/directory/equal-employment-civil-rights/

Alaska 

No damages except for reasonable expenses or reasonable attorney’s fees. 

http://www.legis.state.ak.us/basis/folioproxy.asp?url=http://wwwjnu01.legis.state.ak.us/c

gi-bin/folioisa.dll/stattx11/query=*/doc/{t9368}? 

Arizona 

Disability not a protected class under state civil rights law on public accommodations. 

Complainant would have to file federally. 

https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/41/01442.h

tm

Colorado 

CO Rev Stat § 24-34-802(20(a)(II): Actual monetary damages (economic) 

https://law.justia.com/codes/colorado/2018/title-24/principal-departments/article-34/part8/section-24-34-802/

Georgia 

Georgia has no public accommodation section in its civil rights law. 
35

Hawaii 

Any person who is injured by an unlawful discriminatory practice, other than an unlawful 

discriminatory practice under part II of this chapter, may: (1) Sue for damages 

sustained, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum 

not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is 

the greater, and reasonable attorneys' fees together with the costs of suit. 489-7.5(a)(1) 

Kentucky 

KRS 344.450 Civil remedies for injunction and damages. 

Any person injured by any act in violation of the provisions of this chapter shall have a 

civil cause of action in Circuit Court to enjoin further violations, and to recover the actual 

damages sustained, together with the costs of the law suit. The court's order or 

judgment shall include a reasonable fee for the plaintiff's attorney of record and any 

other remedies contained in this chapter. 

https://kchr.ky.gov/About/Pages/Kentucky-Civil-Rights-Act.aspx

Louisiana 

No public accommodations law 

http://www.capitol.hawaii.gov/hrscurrent/Vol11_Ch0476-0490/HRS0489/HRS_0489-

.htm

Nebraska 

Neither NE’s public accommodations act or rule allow for monetary damages. 

https://neoc.nebraska.gov/laws/pdf/ActProvidingEqualEnjoymentofPublicAccommodatio

ns.pdf

https://neoc.nebraska.gov/laws/pdf/PARules.pdf

Nevada 

NRS 651.090 Deprivation of, interference with and punishment for exercising rights 

and privileges: Civil actions; damages; equitable relief; costs and attorney’s fees. 

2. In an action brought pursuant to this section, the court may: (a) Grant any

equitable relief it considers appropriate, including temporary, preliminary or permanent

injunctive relief, against the defendant. (b) Award costs and reasonable attorney’s fees

to the prevailing party.
36

https://www.leg.state.nv.us/nrs/nrs-651.html#NRS651Sec070

North Carolina 

§ 168A-11. Civil action. (b) Any relief granted by the court shall be limited to declaratory 

and injunctive relief... 

(d) In any civil action brought under this Chapter, the court, in its discretion, may 

award reasonable attorney's fees to the substantially prevailing party as part of costs. 

(1985, c. 571, s. 1; 1999-160, s. 1.) 

https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_168a.html

North Dakota 

14-02.4-20. Relief. Neither the department nor an administrative hearing officer may 

order compensatory or punitive damages under this chapter. 

https://www.ndlegis.gov/cencode/t14c02-4.pdf?20150821135716

Pennsylvania 

Section 9 (d)(2) If, after a trial, Commonwealth Court finds that a respondent engaged 

in or is engaging in any unlawful discriminatory practice as defined in this act, the court 

may award attorney fees and costs to the complainant on whose behalf the action was 

commenced. 

https://www.legis.state.pa.us/cfdocs/legis/LI/uconsCheck.cfm?txtType=HTM&yr=1955&

sessInd=0&smthLwInd=0&act=222&chpt=0&sctn=9&subsctn=0

Puerto Rico 

No human rights law. 

South Carolina 

No public accommodations law. 

https://www.scstatehouse.gov/code/t01c013.php 

Tennessee 

Disability is not a protected class in TN law on public accommodations. 
37

Virginia 

No compensatory damages. 

https://law.lis.virginia.gov/report/0AtCs/

Wyoming 

No public accommodations law. 

www.wyomingworkforce.org/workers/labor/rights 

i Cummings v. Premier Rehab Keller, P.L.L.C., ___ U.S. ___, 142 S. Ct. 1562, 212 L. 

Ed. 2d 552, reh'g denied, 142 S. Ct. 2853 (2022). 

ii The Congressional Research Service has released a useful analysis of the impact of 

Cummings on other civil rights laws in “Civil Rights Remedies in Cummings and 

Implications for Title VI and Title IX.” (June 29, 2022). 

https://crsreports.congress.gov/product/pdf/LSB/LSB10775 (Accessed Oct. 6, 2022). 

iii U.S. Constitution, Article I, Section 8, Clause 1. “Spending Law” statutes derive their 

authority from this section of the U.S. Constitution. The “Spending Clause” authorizes 

Congress to raise taxes and spend money “to pay the Debts and provide for the 

common Defence [sic] and the general Welfare of the United States.” Federal agencies 

distribute billions of dollars in federal assistance, and Congress sets conditions and 

parameters concerning use of federal funds enacted through this spending clause 

authorities. This is distinct from statutes that are based, for example, on the “Commerce 

Clause,. The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. 

Constitution, which gives Congress the power “to regulate commerce with foreign 

nations, and among the several states, and with the Indian tribes.” 

iv Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat 327 (1990), § 

2(b)(4); codified at 42 U.S.C. § 12101(b)(4). v Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097 (2002). 

vi Courts can further order injunctive, also known as equitable relief, to order a 

defendant in an antidiscrimination suit to take or refrain from taking such action. While 

perhaps not intuitive, a Court under the Title I of ADA covering employment may order 

equitable monetary relief which is not considered compensatory damages. Lost past or 

future wages and benefits which result from employment discrimination is considered 

equitable relief and not compensatory damages. 42 U.S.C. § 1981a Civil Rights Act of 

1991, PL 102–166, November 21, 1991, 105 Stat 1071; see e.g., Picinich v. United 

Parcel Serv., 583 F. Supp. 2d 336, 344 (N.D.N.Y. 2008), aff'd, 318 F. App'x 34 (2d Cir. 

2009). 

Endnotes 
38

vii See footnote 3. 

viii 42 U.S.C. § 2000d et seq. ix Barnes, 536 U.S. at 185. x

 Title VI of the Civil Rights Act is silent on the issue of punitive damages. 

xi Barnes, 536 U.S. at 188. 

xii Louisville & N.R. Co. v. Hull, 24 Ky.L.Rptr. 375 (Ct. App. Ky., May 29, 1902).

xiii Notably, many state laws provide for damages where Title III of the ADA does not. 

For example, plaintiffs in California may bring accessibility lawsuits under the state’s 

Unruh Civil Rights Act, California Civil Code § 52(a) and (b), allowing $4,000 per 

violation as well as punitive damages and attorney’s fees. The California Disabled 

Persons Act, as well as a variety of other state laws, provide additional avenues for the 

recovery of damages.

xiv See Doe v. Salvation Army, 685 F.3d 564, 574 (6th Cir. 2012) (“There is nothing in 

the plain meaning of the statutory words or the legislative history of § 504 that would 

exclude social services when done as a form of worship, even though such social 

services may in some cases also be called religious service.”). 

xv See Nordwall v. PHC-LAS Cruces, Inc, 960 F.Supp.2d 1200, 1228 (D. New Mexico, 

2013). 

xvi Ibid., 960 F.Supp.2d at 1229, quoting Saltzman v. Bd. of Comm'rs of N. Broward 

Hosp. Dist, 239 F. App’x. 484, 487–88 (11th Cir. 2007). 

xvii Ibid., 960 F.Supp.2d at 1229-30. 

xviii Ibid., 960 F.Supp.2d at 1230. 

xix Barnes, 536 U.S. at 185. xx Cummings, 142 S. Ct. at 1578 (Breyer dissenting).

xxi 42 U.S.C. § 12132. Enforcement “The remedies, procedures, and rights set forth in 

section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies, 

procedures, and rights this title provides to any person alleging discrimination on the 

basis of disability in violation of section 202 [of the ADA.]”

xxii Cummings, 42 S. Ct. at 1578 (Justice Breyer dissenting).

xxiii 20 U.S.C. § 1681 - § 1688. 

xxiv The contract law analogy applied to Section 504 remedies was then extrapolated to 

Title II of the ADA. 

xxv Barnes, 536 U.S. at 188. 

xxvi Ibid., 536 U.S. at 189. 

xxvii Ibid., 536 U.S. at 187. 

xxviii Cummings, 42 S. Ct. at 1577 (Justice Breyer dissenting citing Restatement 

(Second) of Contracts § 353). 

xxix Barnes, 536 U.S. at 187. xxx Ibid., 536 U.S. at 188. xxxi Cummings, 142 S. Ct. at 1571. 

xxxii 505 F.3d 1173 (11th Cir. 2007). 

xxxiii 349 Mich. 459, 84 N.W.2d 816, 823 (1957). 

xxxiv Ibid., 349 Mich. at 466-7. xxxv Sheely, 505 F.3d at 1199. 

xxxvi 332 F.3d 1347, 1354, 1359 (11th Cir. 2003). 

xxxvii 777 F.2d 1431, 1435 (11th Cir. 1985). 
39

xxxviii 178 Misc. 363, 34 N.Y.S.2d 312, 314–16 (N.Y. Sup.Ct. 1942). 

xxxix Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 679 (5th Cir., 2020), 

citation to Sheely, 505 F.3d at 1199. 

xl Barnes, 546 U.S. at 187. 

xli See Nashville, C. & St. L. Ry. v Campbell, 212 Ala. 27 (1924) (“[A]ny breach of a 

contract entitling a plaintiff to recover nominal damages will support a recovery for 

mental suffering, even though no injury to person or property is shown”); Gregory & 

Swapp, PLLC v. Kranendonk, 2018 Utah 36, 424 P.3d 897 (Utah 2018) (“When the 

primary nature of the contractual obligations involves peculiarly personal interests, as 

opposed to pecuniary interests, emotional distress damages stemming from a breach of 

that contract may be warranted.”). 

xlii Stewart, 349 Mich. at 469. 

xliii Includes Community Mental Health Centers, Comprehensive Outpatient 

Rehabilitation Facilities, Critical Access Hospitals, Dialysis Facilities, Federally Qualified 

Health Centers, Home Health Agencies, Hospice Providers, Hospitals, Rural Health 

Clinics, Skilled Nursing Facilities among other healthcare organizations. 

xliv CMS has legal authority under Title XVIII of the Social Security Act to require health 

care providers to meet the legal requirements of the civil rights nondiscrimination 

statutes and regulations enforced by OCR in order to participate in the Medicare Part A 

program. These statues and regulations ensure that eligible persons have equal access 

to quality health care regardless of their race, color, national origin, disability, or age. 

The specific statutes include: Title VI of the Civil Rights Act of 1964 (which prohibits 

discrimination on the basis of race, color and national origin); Section 504 of the 

Rehabilitation Act of 1973 (which prohibits discrimination on the basis of disability); the 

Age Discrimination Act of 1975 (which prohibits discrimination on the basis of age); and 

Section 1557 of the Affordable Care Act (which prohibits discrimination on the basis of 

race, color, national origin, sex (including pregnancy, sexual orientation, and gender 

identity), age, or disability in certain health programs or activities). 

xlv Ninety-eight percent of civil cases are filed in state courts. As of 2015 more than half 

of civil case filings were contract cases. Weiss, D., “Tort suits in state courts are ‘down 

sharply’ as contract claims grow.” ABA Journal, July 26, 2017. 

https://www.abajournal.com/news/article/tort_suits_in_state_courts_are_down_sharply_

as_contract_claims_grow (accessed Oct. 7, 2022).

xlvi See 54 A.L.R.4th 901 (Originally published in 1987). 

xlvii Ibid.

xlviii 113 Ky. 561, 68 S.W. 433 (1902). 

xlix Kishmarton v. William Bailey Constr., Inc., 93 Ohio St. 3d 226 (2001). 

l

 94 So. 3d 782 (La. Ct. App. 1st Cir. 2012), writ denied, 90 So. 3d 442 (La. 2012). 

li Louisiana Statutes Annotated – Civil Code. Art. 1998 (1985). 

lii 504 U.S. 555 (1992).

liii Aikins v. St. Helena Hosp., 843 F.Supp. 1329 (N.D.Cal.1994).

liv Giterman v. Pocono Med. Ctr., 361 F.Supp.3d 392, 406 (M.D.Pa. 2019). 

lv 742 F. Supp. 2d 1192 (D. Colo. 2010). 

lvi Barnes, 536 U.S. at 188.

lvii 548 U.S. 291 (2006). 

lviii Ibid., 548 U.S. at 296. 
40

lix Cummings, 142 S. Ct. at 1576-7 (Cavanaugh concurrence). 

lx Ibid., 142 S. Ct. at 1578 (Breyer dissenting). 

lxi See Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75 (1992); Barnes, 536 U.S. at 

187, Cummings, 142 S. Ct. at 1570.

lxii The Law Dictionary featuring Black’s Law Dictionary (2nd ed.) 

https://thelawdictionary.org/article/two-different-types-compensatory-damages/

(accessed Oct. 6, 2022). 

lxiii Legal Information Institute, Cornel Law School, “damages,” 

https://www.law.cornell.edu/wex/damages. (Accessed Oct 6, 2022); Ibid., “actual 

damages,” https://www.law.cornell.edu/wex/actual_damages (Accessed Oct 6, 2022).