The Court says emotional distress is no longer worthy of compensatory damages, further stripping marginalized peoples—the most frequent victims of discrimination—of their protections.
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Last week, yet another terrible decision slipped through the Supreme Court—this one eviscerates the rights of people to recover damages when they’ve been the victim of discrimination.
In Cummings V. Premier Rehab Keller, P.L.L.C., the Supreme Court addressed whether victims of discrimination can recover damages for emotional distress. The conservative majority, depressingly but unsurprisingly, said no. This might seem like a technical, somewhat dry distinction, but it radically limits how people will be able to get recourse when they’re discriminated against. That’s because much of the harm that results from discrimination is emotional. Now, victims will be limited to recovery only for compensatory damages, which means you can only get some money back for the actual economic loss you suffered.
How did the Court get to this terrible place? Easily. It starts with contract law and goes downhill from there. Also, it was yet another 6-3 decision, with all the conservatives happily ensconced in the majority and willing to deprive people of their remedies to discrimination.
Jane Cummings, who is deaf and legally blind, went to a physical therapist, Premier Rehab Keller, in the Dallas Fort-Worth area. Cummings communicates primarily using American Sign Language. She asked Premier to provide her with an ASL interpreter, but they said no. Instead, they told her she could communicate in other ways—written notes, lip-reading, or gesturing.
Let’s start with that. Premier Rehab told her that they would be denying her a basic necessity here: she could not communicate with her physical therapist in the way she usually communicates. Making someone communicate in a way they aren’t familiar with doesn’t really make for an excellent healthcare experience.
Cummings, unsurprisingly, went and got care elsewhere. Later, she filed a lawsuit against Premier Rehab, saying that they discriminated against her on the basis of disability and that violated two laws: the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act. Premier Rehab is subject to those laws, and other anti-discrimination laws, because they take federal Medicare and Medicaid money.
A federal district court in Texas tossed the complaint, saying that the only injuries she alleged were “humiliation, frustration, and emotional distress.” The Fifth Circuit Court of Appeals, which is the very worst Federal Court of Appeal, agreed, and then it went to the Supreme Court, which, unfortunately, agreed as well.
But back to the contract part.
Over the years, the courts have characterized this bargain—we give you federal money when you agree to certain strings related to this money—as a kind of contract. First, if you take federal money, you’re subject to the two laws above, which cover discrimination in the areas of healthcare and disabilities. You’re also subject to two other discrimination laws—Title VI of the Civil Rights Act, which bars discrimination based on race, color, or national origin, and Title IX, which bars sex-based discrimination.
Let’s boil that down further: if you want federal money, and as a healthcare entity you do, because you want reimbursement from Medicaid and Medicare, you need to agree not to discriminate. Pretty simple and straightforward, right?
Not if you’re the Supreme Court.
First, said SCOTUS, you can’t get relief under a contract for purely emotional damages. You need lost wages or physical harm. (Breyer’s dissent will destroy this idea, but more on that later). Then, continuing the wildly imperfect contract analogy, the Court noted it ruled repeatedly you can’t fully and fairly enter into a bargain with the federal government if you don’t “clearly understand” the obligations that come with it.
So far, so good. Surely PT clinics would understand that if they take federal money, they can’t discriminate and that it would be discriminating to refuse to communicate with someone about their healthcare in the way they are most proficient and comfortable. Indeed, in the guidance for Title VI, HHS gives an example that is precisely on point: if you fail to provide language assistance to people with limited English proficiency or tell people to bring friends, relatives, or their own interpreters along instead, you’re in violation of the law.
As of last week, though, you’re only on the hook for damages if you cause the person some sort of physical harm or monetary loss, for example. If you simply shatter and humiliate them and force them to go elsewhere, that’s no big deal. That’s because a dry, technical discussion of contract law was deployed to sweep away the right of recovery. The conservative majority dug deep into contract law to say you can’t get any recovery for emotional disturbance unless the breach of that contract is the type where serious emotional disturbance was particularly likely. It’s awfully hard to fathom how any discrimination, be it based on refusing to accommodate a disability, being discriminated in the provision of healthcare, or being discriminated against based on your race, color, or sex, would fail to cause emotional disturbance.
In case you’re wondering what types of groups filed amicus briefs in favor of the “emotional disturbance is for suckers” side of the equation, it’s exactly who you would expect: A bunch of conservative states whinging about how this interferes with states rights and the U.S.. Chamber of Commerce saying sure, they hate discrimination too, but how could businesses possibly know they might have to pay up if their discrimination only results in emotional harm? These arguments are so routine and predictable by now—states’ rights! small businesses!—and so often deployed by the right when trying to crush the rights of the vulnerable that we can only assume those organizations just have a template they fill in.
Justice Stephen Breyer dissented, with Justices Sonia Sotomayor and Elena Kagan joining. He also engaged in some dry, technical contract language to push back on the majority’s assertion that contract law doesn’t usually allow for recovery for emotional damages, pointing out that it actually does.
But where the majority fixates on how it can use contract law to limit the rights of the victims of discrimination, Breyer starts by pointing out that intentional discrimination, such as that of refusing to provide a deaf and legally blind person an ASL interpreter when she is receiving health care treatment, is “particularly likely” to cause serious emotional disturbance. Further, Breyer writes, American history is replete with intentional discrimination that didn’t necessarily result in financial harm: the history of segregation in where Black people were forced to use separate facilities and services. In those cases, says Breyer, “the major (and foreseeable) harm was the emotional distress caused by the indignity and humiliation of discrimination itself.”
Finally, says Breyer, this Court is a Court that used to understand this. He reminds the majority of what Justice Arthur Goldberg said in his concurrence in Heart of Atlanta v. U.S., the case that held that hotels could not refuse to serve Black people. Our anti-discrimination laws, wrote Goldberg, seek “the vindication of human dignity and not mere economics.” Perhaps Justice Breyer actually wrote the first draft of those words, as he was Justice Goldberg’s clerk during that term nearly 60 years ago.
What could be clearer, and what could be more at odds with the current Court’s views? The views of the liberal minority stem from a belief that it is our job to expand our care for people, vindicate their dignity, and right historical wrongs—not just to throw them some coin if they lose some money. (It’s also worth remembering, and getting depressed about, the fact that Heart of Atlanta was unanimously decided in 1964. There’s no way you have even five Justices on this current Court that would agree to the basic premise that hotels can’t refuse to serve Black people.)
The end result of the majority’s opinion is to further squeeze millions of people out of fully participating in society. The solution Cummings employed—go somewhere else and get services—is the solution lots of anti-LGBTQ folks suggested back when the homophobic cake baker went all the way to the Supreme Court so he didn’t have to bake a cake for a gay couple: Why don’t you just get your cake somewhere else? It’s the same depressing refrain used against people in Southern states that are radically restricting the right to abortion: Why don’t you just go to another state to get one?
Many people can’t go to another clinic for physical therapy. Many people can’t go to a different baker. Many people can’t leave their state for an abortion. The solution cannot possibly be “upend your life simply because you’re disabled or Black or a woman so you don’t make a business or a conservative government sad.”
Paying people for the harm of being discriminated against has always been an imperfect solution. How do you truly make someone whole when they’ve been humiliated, when their spirit has been crushed, when they have been told they are lesser, when they are denied services? But now, even that meager recompense is gone. Only if someone can point to some economic harm—like you lost your job, for example—will they be able to recover.
It’s yet another way this conservative Court is undermining the very foundation of modern American pluralistic society, making it harder and harder to live and thrive if you’re in any way marginalized. Businesses can deny you your rights with impunity now as long as they only undermine your heart and soul. As long as they don’t touch your pocketbook, you’re stuck with the humiliation, the degradation, and the limitations on your ability to access basic needs. What a way to run a country.
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