Disability Rights

In 2022, the Supreme Court decided Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (2022), a case that significantly narrowed the remedies available under key civil rights laws by holding that emotional distress damages are not recoverable under Spending Clause statutes like Section 504 of the Rehabilitation Act, 24 U.S.C. § 794(a), and Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116. The Court reasoned that because these statutes operate like contracts between the federal government and funding recipients, only remedies traditionally available in contract law—typically limited to economic damages—are available. Cummings, 596 U.S. at 221-22.  Section 504 states “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The Supreme Court may soon consider whether Cummings extends to cases under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134.

Title II of the ADA protects people with disabilities from discrimination by state and local governments and incorporates the remedies of the Rehabilitation Act. Specifically, Title II provides that “no qualified individual with a disability shall … be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Though Cummings did not directly address Title II, lower courts are increasingly applying its reasoning to bar emotional distress damages under that statute as well—potentially reshaping the landscape of ADA enforcement. This trend carries substantial implications for older adults, who often experience discrimination in public programs or services in ways that result in psychological and emotional harm, rather than financial loss.

In the past year, several federal courts of appeal have weighed in on this issue. The Second Circuit, in Doherty v. Bice, held that emotional distress damages are unavailable under Title II because § 12133 of the ADA expressly incorporates the “remedies, procedures, and rights” of the Rehabilitation Act. 101 F.4th 169, 174 (2d Cir. 2024). The Eleventh Circuit reached the same conclusion in A.W. v. Coweta County School District, though it emphasized that plaintiffs may still seek other forms of relief as “[r]equesting an improper remedy is not fatal to a claim.” 110 F.4th 1309, 1315 (11th Cir. 2024). Meanwhile, the Fifth Circuit declined to decide the effect Cummings has on an individual’s ability to recover emotional distress damages under Title II in two separate cases. Lartigue v. Northside ISD, 100 F.4th 510 (5th Cir. 2023); Luke v. Texas, 46 F.4th 301 (5th Cir. 2022). The Ninth Circuit also left the question open in Bell v. Williams, 108 F.4th 809 (9th Cir. 2024). Most recently, a federal district court in Oregon held that emotional distress damages are not available under the ADA. Jurgens v. Columbia County, 2025 WL 563769, at *13 (D. Or. Feb. 20, 2025) (finding “ADA’s status as a ‘non-Spending Clause’ tort statute [is] quite irrelevant.”) Id. (quoting Barnes v. Gorman, 536 U.S. 181, 189 n.3 (2002)).

In the absence of compensatory emotional-harm awards under federal law, plaintiffs may increasingly rely on overlapping state disability rights statutes, some of which do allow emotional-distress recovery. For instance, in Fugate v. United Ground Express, 2024 WL 4716067 (E.D. Ky. Nov. 7, 2024), the court granted summary judgment to the employer on the plaintiff’s ADA claim but allowed her emotional distress claims to proceed under Kentucky’s anti-discrimination statute, which explicitly permits such relief.

The Cummings decision will also impact AARP Foundation’s work on behalf of older adults. AARP Foundation has long relied on the ADA and the Rehabilitation Act to challenge discriminatory treatment and ensure access to essential services for older adults. Much of our advocacy centers on securing access to services, accommodations, and community-based supports that ensure older adults with disabilities can live independently and with dignity. See, e.g., Fitzmorris v. New Hampshire Dep’t of Health & Human Servs., 2023 WL 8188770 (D.N.H. Nov. 27, 2023) (alleging that New Hampshire’s failure to provide plaintiffs with the community-based, long-term care services for which they have been assessed under the Choices for Independence Medicaid Waiver violates the ADA and the Rehabilitation Act); Brown v. District of Columbia, 761 F.Supp.3d 34 (D.D.C. 2024) (challenging the District of Columbia’s failure to uphold the integration mandate of the ADA by failing to provide nursing facility residents who seek community-based long-term care alternatives with transition assistance). When older adults are denied those services, the resulting harm is often emotional and psychological, not merely financial. If courts continue to extend Cummings to bar emotional distress damages under the ADA, it will severely limit the remedies available to older adults. This undermines accountability for discrimination and constrains efforts to vindicate the rights of older adults through litigation.

Looking ahead, the Supreme Court may be asked to resolve whether Cummings’ bar on emotional distress damages under Spending Clause statutes extends to Title II of the ADA. Given the ADA’s explicit cross-reference to the Rehabilitation Act, the issue is ripe for further clarification. If the Court affirms that such damages are categorically unavailable under the ADA, older adults with disabilities who face exclusion from public life may have no meaningful remedy in the absence of direct financial harm. This development would not only undercut enforcement of the ADA’s integration mandate but also risk normalizing a tiered system of justice where only economically quantifiable harms are redressable in federal court.

Rebecca Rodgers, RRodgers@aarp.org

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