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The Cost of a Broken Heart: Damages for Emotional Distress Under Civil Rights Statutes

Cummings v. Premier Rehab Keller, P.L.L.C.

No. 20-219,
948 F.3d 673 (5th Cir. 2020),
cert. granted, 2021 WL 2742781 (U.S. July 2, 2021).

Oral argument scheduled for Nov. 30, 2021.

Issue: Whether the compensatory damages that are available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its legal remedies include compensation for emotional distress.

The Civil Rights Act of 1964 provides some of the United States’ most fundamental protections from discrimination. Title VI of the Act prohibits entities that receive federal funds from discriminating on the basis of “race, color, or national origin[.]” 42 U.S.C. § 2000d. Congress incorporated Title VI’s remedies into several other anti-discrimination laws, including Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability, and Section 1557 of the Patient Protection and Affordable Care Act (ACA), which bars discrimination in covered health programs and activities receiving federal funds. 29 U.S.C. § 794; 42 U.S.C. § 18116. The Supreme Court has held that remedies under these statutes include the right to recover “compensatory damages.” Barnes v. Gorman, 536 U.S. 181, 187 (2002). In the upcoming term, the Supreme Court will consider whether the right to “compensatory damages” under these statutes includes damages for emotional distress.

Premier Rehab (Premier) is a physical therapy provider that receives federal funds. Cummings v. Premier Rehab Keller, 948 F.3d 673, 674 (5th Cir. 2020). In 2016, Jane Cummings was referred to Premier for physical therapy to treat her chronic back pain. Id. Ms. Cummings has disabilities that make it difficult for her to read, write, and speak in English. Id. She communicates mostly through American Sign Language (ASL). Id. When Ms. Cummings called Premier to schedule an appointment, she asked for an ASL interpreter, but Premier refused to provide one. Id. As a result, Ms. Cummings was not able to receive physical therapy from Premier. She ultimately decided to seek physical therapy from a different provider. Id.

Ms. Cummings sued Premier for violating Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act by refusing to provide her an interpreter to give her “equal opportunity to benefit from the[ir] service[s].” Petition for Writ of Certiorari at 9, Cummings v. Premier Rehab Keller, (No. 20-219). Ms. Cummings sought damages to compensate her for the emotional harm Premier caused.

In January 2019, the U.S. District Court for the Northern District of Texas dismissed the case, holding that emotional distress damages are not available under Section 504 of the Rehabilitation Act or Section 1557 of the ACA. Cummings v. Premier Rehab, 2019 WL 227411, at *4-5 (N.D. Tex. Jan. 16, 2019).

The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s decision. Cummings, 948 F.3d at 680. AARP and AARP Foundation joined several disability rights advocacy organizations in filing an amicus brief asking the Fifth Circuit to rehear the case. The brief describes how the Fifth Circuit’s decision could have wide-reaching consequences for the remedies available under civil rights statutes. The Fifth Circuit denied Cummings’s request for rehearing. Order on Petition for Rehearing En Banc, Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673 (5th Cir., Mar. 24, 2020).

Cummings sought the review of the Supreme Court, arguing that emotional distress damages are a kind of compensatory damages that are traditionally available in contract law, where the contract involves personal or dignitary interests. Reply Brief for Pet’r at 2, Cummings v. Premier Rehab Keller, 2021 WL 2742781 (U.S. July 2, 2021) (No. 20-219). Cummings contended that emotional distress damages are traditionally available when a breach is likely to cause emotional harm. Id. at 7.

In response, Premier argued that the Rehabilitation Act, ACA, and other Federal civil rights laws are limited to the traditional remedies available under contract law, which generally exclude damages for emotional distress. Brief in Opposition of Respondent Premier Rehab Keller, P.L.L.C at 3-8, Cummings v. Premier Rehab Keller, 2021 WL 2742781 (U.S. July 2, 2021) (No. 20-219). Premier contended that the “personal contract” exception that allows for recovery of emotional distress damages in some contract actions does not apply to Cummings’s lawsuit. Id. at 2-3.


The availability of damages in private lawsuits is a critical part of the enforcement mechanisms of the Civil Rights Act, the Rehabilitation Act, and Section 1557 of the ACA. If the Supreme Court finds that damages for emotional distress are not available, these key anti-discrimination laws will be harder to enforce. It would place a strict limitation on the monetary relief that is recoverable by victims of discrimination, including older adults, who are more likely to have a disability or impairment. For example, a victim of discrimination who experienced severe distress or emotional trauma but did not experience a provable financial loss would not be able to bring a successful lawsuit to enforce their rights.

Daniel Kohrman

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