Legal E-Bulletin - May 2003

Punitive Damages under § 504 of the Rehabilitation Act and Title II of the ADA.

In Barnes v. Gorman1, the Supreme Court ruled that punitive damages were not an available remedy in a private cause of action under Title II of the Americans with Disabilities Act or § 504 of the Rehabilitation Act. This case helped clarify an issue that many lower courts had disagreed - - whether money damages were even available with the lack of specific guidance provided by Congress in legislating Title II and § 504.

The plaintiff, Jeffrey Gorman lacks voluntary control over the lower half of his body and uses a wheelchair. He must also wear a catheter attached to a urine bag around his waist since he doesn't have control over his bladder. Gorman was involved in an altercation at a Kansas City nightclub and was arrested. While waiting for a police van to take him to the station, Gorman was denied permission to empty his urine bag in a restroom. The van that arrived was not wheelchair accessible and over Gorman's objections, the police officer removed him from his wheelchair and strapped him to a bench in the van with the seatbelt tightened over his urine bag. Gorman later released his seatbelt because of the pressure placed on his urine bag, ultimately falling off the bench. His wheelchair was also damaged in the ride. Gorman continues to suffer serious medical problems related to this incident.

Title II of the ADA prohibits discrimination on the basis of disability by state and local governmental entities while § 504 of the Rehabilitation Act prohibits discrimination by recipients of federal funding. The Kansas City police department is a public entity that receives federal funding. By failing to follow appropriate policies for the proper arrest and transportation of people with disabilities, they had in effect discriminated against Gorman.

Gorman sued the police for violating Title II and § 504 and received a jury verdict of $1 million in compensatory damages and $1.2 million in punitive damages. The district court vacated the punitive damages, holding that they were unavailable under Title II and § 504 respectively. The Federal Court of Appeals for the Eighth Circuit reversed this decision, contending that punitive damages are a traditional remedy available to the courts, and their availability should not be disturbed unless Congress declares they are not available.

Punitive damages are a traditional court-ordered remedy designed to punish the defendant through their pocketbook as opposed to compensatory damages, which help compensate the victim. Courts will usually only award punitive damages when there has been intentional wrongdoing, wanton and reckless misconduct, or some sort of outrageous behavior.

If one looks at the statute prescribing remedies available under Title II2 , it refers to the statute discussing remedies for § 504 of Rehabilitation Act3. If one then looks at the Rehab Act statute, it states that the remedies are the same as those under Title VI of the Civil Rights Act4, which prohibits racial discrimination in federally funded programs and activities. So the remedies under both Title II and § 504 are the same as those available under Title VI.

This maddeningly convoluted attempt to find out what remedies are indeed available does not end there. Title VI doesn't mention any remedies in a private cause of action. However, the Supreme Court had interpreted Title IX of the Education Amendments of 19725 consistent with Title VI and ruled that monetary damages were available in a private cause of action under Title IX in Franklin v. Gwinnett County Public Schools6 : “Absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” The Eighth Circuit had relied on Franklin and justified punitive damages as being “appropriate relief” for the courts to award under Title II. The Supreme Court stepped in and overruled.

Justice Scalia, in writing for a unanimous Supreme Court, noted that Franklin never defined the scope of "appropriate relief" available. Congress first passed Title VI and later the Rehabilitation Act under the Spending Clause of the United States Constitution. The Supreme Court likened legislation that utilizes the Spending Clause to a contract. Under the Spending Clause, Congress can place certain conditions upon granting federal funds. Under Title VI, the recipient agrees not to discriminate on the grounds of race by accepting the money. A similar analogy applies to § 504 with disability discrimination. When a recipient of federal funds discriminates, he is essentially breaking his agreement with Congress.

“A funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract.” (citing Franklin)

So the proper scope of remedies available under Title VI is the traditional remedies available in a breach of contract. The Supreme Court reiterated that punitive damages, unlike compensatory damages or injunctions, are traditionally not available in a breach of contract. Since compensatory damages by themselves can sometime exceed a recipient's level of federal funding, the Supreme Court reasoned that the recipient would never have accepted the money if they were to be additionally exposed to punitive liability. Therefore, punitive damages are not an available remedy under Title VI. Since both Title II and § 504's remedies derive from Title VI, punitive damages aren't available for Mr. Gorman either.

This decision exposes a tragic oversight by Congress when it fashioned Title II's remedial scheme after § 504's [remedial scheme] and ultimately Title VI’s. Technically, as Justice Stevens noted in his concurring opinion, Title II, unlike Title VI and § 504 was not passed under the Spending Clause. Congress had passed the ADA using its power under the Fourteenth Amendment to enact legislation that enforces equal protection under the law. Public entities don't really have much of a choice when told not to discriminate under Title II, and this mandate is not conditioned on the receipt of federal funds. So the contract analogy would not have worked had Title II's remedies not been derived from § 504's. If Congress had intended punitive damages to be an available remedy under Title II, it could have explicitly legislated that as Franklin suggested rather than allow the courts to guess and possibly undermine their original intentions.

It is clear from the Barnes decision that punitive damages are not an available remedy under Title II and Section 504. The Supreme Court did not disturb Gorman’s compensatory damage award.

Presumably, compensatory damages will remain an available remedy since compensatory damages are “traditionally available for a breach of contract.” Two important obstacles still remain in obtaining compensatory damages. The first is that many courts require the showing of intentional discrimination before the award of such compensation. Many § 504 and Title II violations by state and local government are often due to ignorance and indifference to the obstacles that people with disabilities face in obtaining services and programs. The second obstacle in acquiring compensatory damages is the sovereign immunity issue. Courts are divided on whether state governments are even liable for money damages under Title II or Section 504 when sued by private individuals. A discussion on the contentious issue of sovereign immunity and its impact on civil rights legislation is outside the scope of this E-bulletin. The important thing to know is that only states have this immunity. Individuals can still recover compensation for local government violations of the ADA or Rehabilitation Act as long as such compensation is deemed “proper” by the courts.

1. 536 U.S. 181 (2002)
2. 42 U.S.C. § 12133
3. 29 U.S.C. § 794a(a)(2)
4. 42 U.S.C. § 2000d et seq.
5. 20 U.S.C. § 1681-1688
6. 503 U.S. 60 (1992)

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