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Justices Question Availability of Emotional-Distress Damages (1)

Nov. 30, 2021, 4:45 PMUpdated: Nov. 30, 2021, 5:24 PM

The lawyer for a deaf and legally blind woman seeking emotional-distress damages told the Supreme Court that such damages are often the only compensatory remedy for victims of intentional discrimination.

But whether she and other plaintiffs can recover them under federal anti-discrimination laws remains uncertain after oral argument Tuesday, with several justices casting doubt on such damages’ availability or expressing concerns that rewards can be too high.

“Are we supposed to allow uncapped liability?” Justice Brett Kavanaugh asked Jane Cummings’ lawyer, Andrew Rozynski.

Cummings mainly communicates with sign language and it’s difficult for her to speak, read, and write. Suffering chronic back pain in Texas in 2016, she sought physical therapy from Premier Rehab Keller. The business refused to provide a sign-language interpreter, telling Cummings she could communicate with the therapist by written notes, lipreading, gesturing, or by bringing her own interpreter.

Cummings sued Premier, but the New Orleans-based U.S. Court of Appeals for the Fifth Circuit said the business wasn’t on notice that it could be liable for emotional-distress damages under the Rehabilitation Act and the Affordable Care Act.

Those laws differ from other anti-discrimination laws because they “say nothing about what private remedies are available to enforce their provisions,” Premier’s lawyer, Kannon Shanmugam of Paul Weiss, told the justices. He’s supported by Republican-led states and the U.S. Chamber of Commerce.

Represented by assistant to the solicitor general Colleen Sinzdak, the Justice Department backed Cummings at Tuesday’s argument, adding to amicus support from disability organizations, civil-rights groups, and law professors.

The justices are expected to decide the case by July.

The case is Cummings v. Premier Rehab Keller, P.L.L.C., U.S., No. 20-219.

(Updates with additional reporting from Tuesday's oral argument. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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