Disability Law Index - Employment: Enforcement and Remedies

Statutes:

42 U.S.C. § 12117 - Enforcement

(a) Powers, remedies, and procedures - The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

(b) Coordination - The agencies with enforcement authority for actions which allege employment discrimination under this subchapter and under the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.) shall develop procedures to ensure that administrative complaints filed under this subchapter and under the Rehabilitation Act of 1973 are dealt with in a manner that avoids duplication of effort and prevents imposition of inconsistent or conflicting standards for the same requirements under this subchapter and the Rehabilitation Act of 1973. The Commission, the Attorney General, and the Office of Federal Contract Compliance Programs shall establish such coordinating mechanisms (similar to provisions contained in the joint regulations promulgated by the Commission and the Attorney General at part 42 of title 28 and part 1691 of title 29, Code of Federal Regulations, and the Memorandum of Understanding between the Commission and the Office of Federal Contract Compliance Programs dated January 16, 1981 (46 Fed. Reg. 7435, January 23, 1981)) in regulations implementing this subchapter and Rehabilitation Act of 1973 not later than 18 months after July 26, 1990.

42 U.S.C. § 1981a. - Damages in cases of intentional discrimination in employment

(a) Right of recovery

(1) Civil rights - [omitted]

(2) Disability -In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-16) (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 794a(a)(1) of title 29, respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 791 of title 29 and the regulations implementing section 791 of title 29, or who violated the requirements of section 791 of title 29 or the regulations implementing section 791 of title 29 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

(3) Reasonable accommodation and good faith effort - In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112(b)(5)) or regulations implementing section 791 of title 29, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.

(b) Compensatory and punitive damages

(1) Determination of punitive damages - A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

(2) Exclusions from compensatory damages - Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)).

(3) Limitations - The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party -

(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;

(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and

(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and

(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

(4) Construction Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.

(c) Jury trial - If a complaining party seeks compensatory or punitive damages under this section -

(1) any party may demand a trial by jury; and
(2) the court shall not inform the jury of the limitations described in subsection (b)(3) of this section.

(d) Definitions - As used in this section:

(1) Complaining party - The term ''complaining party'' means -

(A) in the case of a person seeking to bring an action under subsection (a)(1) of this section, the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

(B) in the case of a person seeking to bring an action under subsection (a)(2) of this section, the Equal Employment Opportunity Commission, the Attorney General, a person who may bring an action or proceeding under section 794a(a)(1) of title 29, or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).

(2) Discriminatory practice - The term ''discriminatory practice'' means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a) of this section.

Regulations:

29 C.F.R. § 1601 - Procedural Regulations

29 C.F.R. § 1641 - Procedures For Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts

Case Law:

Board of Trustees of Univ. of Alabama v. Garrett, 121 S. Ct. 955 (2001).

  • State employees can not sue their employers under Title I of the ADA in federal court to recover money damages. In order to abrogate a state's 11th amendment sovereign immunity, Congress must enact a statute pursuant to a valid exercise of its powers under the 14th amendment.
  • The Supreme Court ruled that Congress had failed to show a pattern of employment discrimination by the States which violated the 14th amendment; therefore, a State employer can always raise 11th amendment immunity in a money damages claim under Title I.
  • This ruling does not mean that "persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief." Footnote 9.

See also Legal E-Bulletins on Garrett: February 2001 | March 2001

Gibson v. Arkansas Dept. of Correction, 21 NDLR 193 (8th Cir. 2001).

  • Given the unambiguous language of the footnote in Garrett, private individuals can sue state officials for injunctive relief under the ADA.

Bartee v. Michelin North America, Inc., 374 F.3d 906 (10th Cir. 2004).

  • An ADA plaintiff may seek punitive damages if his employer acted with "malice or with reckless indifference to the plaintiff's federally protected rights."
  • To satisfy this standard, the employer must engage in the prohibited conduct with the "knowledge that it may be acting in violation of federal law, not [mere] awareness that it is engaging in discrimination".

E.E.O.C. v. Federal Express Corp., __ F.3d __ (4th Cir. Jan. 23, 2008).

  • Employer's failure to accommodate in failing to provide an interpreter for deaf cargo handler justified an award of punitive damages. Higher management officials had acted reprehensibly with respect to the employee's need for ADA accommodations.
    • Their failure and refusal to provide accommodations did not result from isolated incidents.
    • Employee's disability was always known by his supervisors. He had made repeated requests for accommodations.
    • Supervisors were plainly indifferent to fact that their failure to accommodate employee's disability could jeopardize his safety and potentially implicate safety of others.
    • Supervisors were familiar with mandate of ADA and perceived the risk that their conduct was unlawful.
  • Proof of actual malice is not necessary in order to justify punitive damages under the ADA as long as the plaintiff can prove reckless indifference on the part of his employer.
  • Mere existence of an ADA compliance policy will not alone insulate an employer from punitive damages liability. An employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation.