One upcoming Supreme Court decision is dominating our headlines. But another recent case is looming large in the minds of people with disabilities because it curtails the already limited recourse people with disabilities have when they’ve faced discrimination.
Cummings vs. Premier Rehab Keller originated when Jane Cummings, who is deaf and legally blind, sued her physical therapy provider for failing to provide her with sign language interpretation. Premier Rehab Keller’s claim was that because Cummings could read lips and exchange notes, no additional interpretation was required.
On April 28, the Supreme Court issued its ruling against Cummings.
Notably the court’s argument was not debating whether Cummings was the target of discrimination. The question was whether she had a claim for damages because, as a federal judge said, the only injuries suffered from the discrimination were “humiliation, frustration and emotional distress,” not economic harm.
To understand this distinction and the Supreme Court’s rationale, we should look back to the laws prohibiting discrimination against people with disabilities. The Rehabilitation Act of 1973, which was cited in this case, prohibits discrimination based on disability by any federal program or program receiving federal funds. Providers who take public insurance, such as Medicare, fail into this category.
The Americans with Disabilities Act of 1991 followed, and it extends protections to almost all private and public settings. The Rehab Act allows people to file complaints through the Federal Department that oversees the funding, while ADA complaints can go through the Department of Justice. But the DOJ admits that it cannot investigate every complaint, and some investigations end in mitigation. The predominant remedy over the years has been litigation.
Under both acts, there is the option to file a lawsuit with a federal court. Here’s where the Supreme Court ruling gets problematic. According to the majority opinion, the Rehab Act only allows for the recovery of economic damages. Though the ADA was not specifically cited in this case, it includes similar provisions and may be impacted by this ruling as well.
In his dissent, Justice Breyer provided an excellent explanation of the problem this produces: “The court’s decision today allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm, even though the primary harm inflicted by discrimination is rarely economic. … The court’s decision today will leave those victims with no remedy at all.”
By using the litmus of economic harm, most discrimination claims will have no standing. Outside of employment and education, proving direct economic harm is difficult. But the harm caused by humiliation and isolation has measurable effects on a person’s physical and mental health.
Through the Rehabilitation Act of 1973, the Americans with Disabilities Act, and certain provisions in the Affordable Care Act, our country has promised people with disabilities protection from discrimination. With this Supreme Court ruling, we may have reneged on that promise.
Tara Kiene is president/CEO of Community Connections Inc.