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You are listening to the Disability Law Lowdown Podcast, Show #39, with your host, Jacquie Brennan.

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Jacquie Brennan: Today’s podcast is about remedies, what remedies people can get when they sue under the ADA. Vinh Nguyen in our office wrote a really great piece on remedies under the ADA and I’m going to use that as the basis for the information provided in this podcast.

The Americans with Disabilities Act is a complex civil rights law that may award different remedies depending on the discrimination that occurred. Some remedies are spelled out in the ADA explicitly and others are established by case law that interprets the ADA and also its sister law, Section 504 of the Rehabilitation Act. For someone that sues, that person is called the plaintiff, the available remedies have to be considered before filing a lawsuit. I get a lot of calls from people who think they have found a violation of the ADA and now they will get a million dollars. It doesn’t really work that way, so it’s good to know, from the plaintiff’s side, as well as from the defendant’s side, what the available remedies and the potential liabilities are for violating the ADA.

There’s some terminology we need to get straight first. Damages, those are what people usually think of when they think about lawsuits. Damages are the money that is paid to a plaintiff, the person who filed the lawsuit, if the plaintiff wins the lawsuit. There are a few different kinds of damages.

There are compensatory damages, which are also sometimes called actual damages, and that’s the money paid to the plaintiff to make up for any actual loss or harm or injury. The purpose of compensatory damages is to make the plaintiff whole. That means to restore the plaintiff to where he or she was before the loss, the harm or the injury. Compensatory damages might include actual money losses as well as money paid to make up for non-monetary injuries like pain and suffering or loss of reputation.

Punitive damages are money that is paid by the defendant to punish the losing defendant. The purpose of these kinds of punitive damages is to reform or to deter the defendant and other people who might be considering violating the ADA in similar situations from committing these discriminatory acts in the future. Punitive damages are not always available as a remedy and they should not be overly excessive.

Injunctive relief is another term you need to know. It’s also sometimes just called an injunction. That’s a court order that either requires the party to do something or not do something. In the context of the ADA, a court might require a defendant to modify a discriminatory policy or to end its discriminatory practices or to put in a ramp or whatever the problem is, they could just get an injunction ordering the business, basically, to comply with the law that has been there since 1990.

Attorney’s fees are available when the losing side has to pay the winning side’s legal bills. Usually, in litigation, each side is responsible for paying its own attorneys, but in certain laws, they make attorney’s fees available, realizing that people may not be able to afford to hire an attorney but who may, nevertheless, have a good case. They want to insure the attorneys that their fees will be paid. This is especially true when the person is not getting a money award. So, if only injunctive relief is available, then there wouldn’t be anything available, an attorney couldn’t take it on a contingency basis because there’s no money that’s going to be involved. This provides for attorney’s fees to be paid without anyone having to pay the attorney up front on the plaintiff’s side.

Court costs are the administrative costs of the court to handle to case, also money that is paid to the court such as filing fees, jury fees and other costs of the court.

A statute of limitation is a law that sets the maximum amount of time after certain events that a person may file a lawsuit. With the Americans with Disabilities Act, the triggering event is when the plaintiff learns about the discriminatory conduct or has reason to know about the conduct. If the alleged discrimination is not an isolated incident but is part of an ongoing and continuous violation with multiple incidents, then only one of the incidents has to occur within this time period for the plaintiff to be able to sue on the basis of continuing violation.

I hope you remember that Title One of the ADA covers employment discrimination. A person has to exhaust administrative remedies before being able to sue under Title One. Now, administrative remedies under Title One mean that you have to first file with the EEOC, the Equal Employment Opportunity Commission, within one hundred and eighty days of the alleged discriminatory act. This deadline may be extended to three hundred days if there is a state or local Fair Employment Practices Agency that also has jurisdiction over this matter. Most states have that.

The EEOC may choose to investigate the matter or have willing parties go through its mediation program. If there is no resolution to the charges, then the EEOC will issue a Right to Sue letter to the charging party. The plaintiff then has ninety days to file a lawsuit after receiving that Right to Sue letter.

The remedies available in a lawsuit under Title One of the ADA come from Title Two of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. The remedies may include both punitive and compensatory damages, injunctive relief, attorney’s fees, and court costs. Compensatory damages may include monetary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-monetary losses. Punitive damages are only awarded if the plaintiff can show the defendant discriminated with malice or with reckless indifference to the federally protected rights of the plaintiff. Injunctive relief may include a court order that the employer hire or reinstate, either with or without back pay, or promote someone. The relief may also require the employer to provide a reasonable accommodation or front pay instead of reinstatement and any interest accrued. It may also be a simple order requiring the employer to stop discriminating against the employee.

Both compensatory and punitive damages are available under Title One in employment cases where the employer intentionally discriminated, but the award of damages in capped depending on the size of the employer. Employers with fewer than fifteen employees are not covered at all. But for fifteen to one hundred employees, the damages cap is fifty thousand dollars. For one hundred and one to two hundred employees, the damages cap is one hundred thousand dollars. For two hundred and one to five hundred employees, the damages are capped at two hundred thousand dollars, and for over five hundred employees, the damages are capped at three hundred thousand dollars. Those dollar amounts have not been changed in the time since the Civil Rights Act was passed.

If seeking damages, the plaintiff has the right to a jury trial and the court does not inform the jury of the cap. If the jury awards in excess of that cap, the court will just reduce the amount accordingly.

In calculating damages that involve monetary loss for the purpose of the cap, this amount does not include back pay or interest on the back pay. Specifically this means that the amount of back pay awarded is not subject to the damages cap. So, back pay liability is limited to two years accrued before the filing of the charge. Back pay liability is usually the time between termination and reinstatement. To calculate back pay, the court will consider the difference between the employee’s former salary and a current, lower salary, which could be zero for the unemployed. This amount can be reduced by the amount of interim earnings the employee should have earned with due diligence.

Front pay is also excluded from these damages calculations as the court considers it an equitable remedy in cases where courts determine reinstatement is not an appropriate or practical remedy. Front pay is the amount of money the employee would have earned in the future had he remained on the job, just how far into the future is determined by the discretion of the court.

In cases that include the provision or lack or provision of reasonable accommodation, damages are not available if the employer made a good faith effort, in consultation with the employee, to identify and provide a reasonable accommodation.

Due to the Supreme Court decision and the Board of Trustees of the University of Alabama vs. Garrett, monetary awards are not available against state employers due to their constitutional immunity. That means that if an employer is a state government or its agencies or institutions, the only recourse is a private lawsuit for injunctive relief that does not involve money.

Under Title Two of the ADA, which covers discrimination by state or local governments on the basis of disability, Title Two incorporates the remedies that are available under the analogous federal law, which is Section 504 of the Rehabilitation Act that prevents and prohibits disability discrimination by federal agencies and federally funded programs.

Under Title Two, a person can file and administrative complaint with the US Department of Justice, DOJ, or another appropriate federal agency such as the Department of Education or the Department of Transportation. The complaint must be filed within a hundred and eighty days of the alleged discriminatory act unless the deadline is extended for good cause. The agency will investigate the claim or will refer the complaint to a more appropriate designated federal agency. The designated agency will attempt an informal resolution to the matter based on its investigation. If there is no resolution, then the agency will issue a Letter of Findings to the parties. If the designated agency finds a violation, it will attempt a voluntary compliance agreement with the violating public entity or refer the case back to DOJ with appropriate recommendations.

However, the complainant does not have to go through this administrative process under Title Two. That’s required under Title One but not under Title Two. Under Title Two, they can go directly and file a lawsuit in federal court.

Title Two does not have a statute of limitations for private lawsuits, so federal courts usually adopt the most analogous statute of limitations under state law. Therefore, the statute of limitations may be different in every state and a potential plaintiff should check with an attorney to determine the applicable time limit for filing a suit.

Compensatory damages and injunctive relief are traditional remedies available in a lawsuit under Title Two and Section 504. Punitive damages are not available, though, no matter how malicious or deliberate the conduct. Attorney fees are awarded at the discretion of the court. Compensatory damages are available only if a plaintiff can prove that the discrimination by the public entity was intentional. Intentional discrimination means conduct that results from deliberate indifference to the rights of the individual or actual malice. This is a really high evidentiary threshold to meet.

Complicating matters even further, the state governments may attempt to assert their constitutional immunity under the Eleven Amendment against a private Title Two lawsuit. Depending on the alleged violation, the state may immune to money awards. This immunity does not apply to cases brought by the federal government. Local government entities like counties and cities do not have this immunity and it applies only to states.

Under Title Three of the ADA, discrimination is prohibited on the basis of disability by places of public accommodation. A person may file a Title Three complaint with the Department of Justice or file a lawsuit in federal court. The complainant does not have to file a complaint before suing in court so there is no administrative remedy exhaustion requirement under Title Three.

In circumstances in which the court believes it would be just, an attorney may be appointed for the complainant. The Department of Justice may also file suit on behalf of the complainants if the defendant has engaged in a practice or pattern of discrimination or if the case raises an issue of general public importance.

The traditional remedy in a private Title Three lawsuit is injunctive relief. Injunctive relief may include an order to make a facility accessible, to provide auxiliary aids and services, modify an existing policy or practice or whatever else the court believes would be appropriate to enable the full use and enjoyment of a place of public accommodation for people with disabilities.

The court may also choose to award attorney’s fees at its discretion. Ordinarily a prevailing plaintiff should recover attorney fees would make such an award unjust. The rationale is that if a successful plaintiff were forces to bear his own attorney’s costs, few parties would be able to afford to advance the public interest using only court ordered injunctions. Prevailing defendants may be entitled to attorney’s fees if the lawsuit was frivolous, unreasonable or brought in bad faith.

In Title Three cases brought by the Department of Justice, the court may award injunctive relief, compensatory damages and other relief that the court believes is appropriate, like attorney’s fees and court costs. In cases that are to vindicate the public interest, the Department of Justice may also seek civil penalties of up to fifty thousand dollars for the first violation and up to one hundred thousand dollars for each subsequent violation.

The lack of money damages in private lawsuits may seem like a disincentive to a potential plaintiff, but there may be analogous state laws that do provide damages. A plaintiff may be able to combine other remedies available under state law with the ADA. For example, say a wheelchair user is physically injured from going down a steep ramp that does not meet ADA guidelines. The plaintiff may be able to receive compensatory damages under state injury and negligence laws using the lack of ADA compliance as evidence against the defendant.

Like Title Two, Title Three is also silent with respect to statute of limitation. Federal courts are most likely going to use the analogous statute of limitation under state law, therefore, the statute of limitation may be different in every state and potential litigants should check with an attorney to determine the applicable time limitation in his or her state.

So that explains what you can expect in terms of remedies under the ADA. Hope you enjoyed this show and will tune in next time.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.