[nagdu] Remedies Under the ADA

[cheryl echevarria]

http://www.swdbtac.org/html/publications/ebulletins/legal/2010/june2010.html

For who would like to read this if not you can read below.

Remedies Under the ADA

The Americans with Disabilities Act (ADA) is a complex civil rights law that 
may award different remedies depending on the discrimination that occurred. 
Some remedies are spelled out in the Act explicitly while others are 
established by case law interpreting the ADA and its sister law, Section 504 
of the Rehabilitation Act. For a potential plaintiff, the available remedies 
must be considered before filing suit. For the potential defendants, the 
potential liability discourages violations of the ADA. This e-bulletin will 
discuss what remedies are available under the ADA.

Glossary of terms used in this e-bulletin:

Damages are what people normally think of when they think about lawsuits. 
Damages are the money paid to the plaintiff (the person who filed the 
lawsuit) if the plaintiff wins the lawsuit. There are several types of 
damages.

Compensatory damages, sometimes called actual damages, are the money paid to 
the plaintiff to make up for any loss, harm, or injury. The purpose of this 
type of remedy is to make the plaintiff whole -- that is, to restore the 
plaintiff to where s/he was before the loss, harm, or injury. Compensatory 
damages may include actual money losses as well as money paid to make up for 
non-monetary injuries such as pain and suffering or loss of reputation.

Punitive damages are the money paid to punish the losing defendant. The 
purpose is to reform or deter the defendant and others in similar situations 
from committing future discriminatory acts. Punitive damages are not always 
available as a remedy in a case and should not be overly excessive.
Equitable remedies are orders given at the discretion of the court that 
direct parties to do or not do something. They include such things as 
injunctive relief.
Injunctive relief, or an injunction, is a court order requiring the party to 
either do something or refrain from doing something. In the context of the 
ADA, a court could order a defendant to modify a discriminatory policy or 
end its discriminatory practices.
Attorneys' fees are when the losing side has to pay the winning side's legal 
bills. Normally, each party is responsible for paying its own attorneys. The 
calculation of the fee often includes litigation expenses such as travel and 
expert witness expenses.
Court costs are the administrative costs of the court to handle the case.
A statute of limitation is a law that sets the maximum amount of time after 
certain events that a person may file a lawsuit. With the Americans with 
Disabilities Act, the triggering event is when the plaintiff learns about 
the discriminatory conduct or has reason to know about the conduct.1 If the 
alleged discrimination is not an isolated incident but is part of an ongoing 
and continuous violation with multiple incidents, then only one of the 
incidents has to occur during this time period for the plaintiff to be able 
to sue on the basis of the continuing violation.
Remedies for employment discrimination
Title I of the ADA prohibits discrimination on the basis of disability in 
employment.2 A person must exhaust all administrative remedies available 
before being able to sue under Title I. The person must first file a charge 
with the Equal Employment Opportunity Commission within 180 days of the 
alleged discriminatory act. This deadline may be extended to 300 days if 
there is a state or local fair employment practices agency that also has 
jurisdiction over this matter.3 The EEOC may choose to investigate the 
matter or have willing parties go through its mediation program. If there is 
no resolution to the charges, the EEOC will issue a right-to-sue letter to 
the charging party. The plaintiff then has 90 days to file a lawsuit after 
receiving the right to sue.4

The remedies available in a lawsuit under Title I of the ADA are derived 
from Title II of the Civil Rights Act which prohibits discrimination in 
employment on the basis of race, color, religion, sex, and national origin. 
The remedies may include both compensatory and punitive damages, injunctive 
relief, attorneys' fees, and court costs.

Compensatory damages may include monetary losses, emotional pain, suffering, 
inconvenience, mental anguish, loss of enjoyment of life, and other 
non-monetary losses. Punitive damages are only awarded if the plaintiff can 
show that the defendant discriminated with malice or with reckless 
indifference to the federally protected rights of the plaintiff.5 Injunctive 
relief may include a court ordering an employer to hire, reinstate with or 
without back pay, or promote someone. The relief may also include requiring 
an employer to provide reasonable accommodation, front pay instead of 
reinstatement, and any interest accrued. It may also be a simple order 
requiring the employer to stop its discrimination.

Both compensatory and punitive damages are available under Title I in cases 
where the employer intentionally discriminated, but the award of damages 
combined is capped depending on the size of the employer.6

Size of employer
 Combined damages capped at

15-100 employees
 $50,000

101-200 employees
 $100,000

201-500 employees
 $200,000

Over 500 employees
 $300,000


If seeking damages, the plaintiff has the right to a jury trial, and the 
court does not inform the jury of the cap in damages.7 If the jury awards 
damages in excess of the cap, the court will reduce the amount accordingly. 
Plaintiffs who seek only equitable relief are only entitled to a bench trial 
(trial by judge).

In calculating damages that involve monetary loss for the purpose of the 
cap, this amount does not include back pay or interest on the back pay.8 
Specifically, this means that the amount of back pay awarded is not subject 
to the damages cap. However, back pay liability is limited to two years 
accrued before the filing of the charge. Back pay liability is usually the 
time between termination and reinstatement.9 To calculate back pay, a court 
will consider the difference between the employee's former salary and 
current lower salary which could be zero for the unemployed.10 This amount 
may be reduced by the amount of interim earnings that the employee should 
have earned with due diligence.

Front pay is also excluded from these damages calculations as courts 
consider it an equitable remedy in some cases where courts determined 
reinstatement is not an appropriate or practical remedy.11 Front pay is the 
amount of money that the employee would have earned in the future had he 
remained on the job. Just how far into the future is determined at the 
discretion of the court.

In cases that involve the provision, or lack of provision, of reasonable 
accommodation, damages are not available if the employer made a good faith 
effort, in consultation with the employee, to identify and provide a 
reasonable accommodation.12

Three federal courts of appeals have ruled that damages are not available 
for claims of retaliation in the workplace. A plaintiff affected by these 
rulings is only entitled to equitable relief and is not entitled to a jury 
trial for these types of claims.13 Lower federal courts not bound by these 
rulings have disagreed over this issue.14

Due to the Supreme Court decision in Board of Trustees of University of 
Alabama v. Garrett, monetary awards are not available against state 
employers due to their constitutional immunity.15 That means if the employer 
is a state government or its agencies/institutions, a plaintiff's only 
recourse in a private lawsuit is injunctive relief that does not involve 
money. Compensatory damages are still available in employment claims against 
local government entities but not punitive damages.16

Remedies for discrimination by state or local government
Title II of the ADA prohibits discrimination on the basis of disability in 
state and local government programs and services. Title II incorporates the 
remedies available under the analogous federal law, Section 504 of the 
Rehabilitation Act, which prohibits disability discrimination by federal 
agencies and federally-funded programs.17

A person may file an administrative complaint with the U.S. Department of 
Justice (DOJ) or another appropriate federal agency like the Department of 
Education or Department of Transportation.18 The complaint must be filed 
within 180 days of the alleged discriminatory act, unless the deadline is 
extended for good cause shown.19 The agency will investigate the claim or 
refer the complaint to a more appropriate designated federal agency. The 
designated agency will attempt an informal resolution to the matter based on 
its investigation.20 If there is no resolution, the agency will issue a 
letter of findings to the parties.21 If the designated agency finds a 
violation, it will attempt a voluntary compliance agreement with the 
violating public entity22 or refer the case back to the DOJ with appropriate 
recommendations.23 However, the complainant does not have to go through this 
administrative process under Title II and can instead directly file a 
lawsuit in federal court.24

Title II does not have a statute of limitations for private lawsuits so 
federal courts usually adopt the most analogous statute of limitation under 
state law.25 Therefore, the statute of limitation may be different in every 
state and a potential litigant should check with an attorney to determine 
the applicable time limit on filing suit. The importance of when a statute 
of limitation starts running has been highlighted by recent Title II 
construction cases. Two federal circuit courts have ruled that the time 
limit is derived from the date of the completed inaccessible construction, 
not when the plaintiff encounters or discovers the barrier.26 This means 
that in certain areas of the country, if the plaintiff does not discover a 
construction barrier within a certain time after construction by a public 
entity, he can not sue to have it corrected!

Compensatory damages and injunctive relief are traditional remedies 
available in a lawsuit under Title II and Section 504. Punitive damages are 
not available though, no matter how deliberate and malicious the conduct.27 
Attorneys' fees awards are at the discretion of the court.

Compensatory damages are available only if a plaintiff can prove that the 
discrimination by the public entity was intentional. Intentional 
discrimination means conduct that results from deliberate indifference to 
the rights of the individual or actual malice.28 This is a very high 
evidentiary threshold to meet.

Complicating matters even further is that state government entities may 
attempt to assert their constitutional immunity under the Eleventh Amendment 
against a private Title II lawsuit. Depending on the alleged violation, the 
state may be immune to monetary awards. 29 This immunity does not apply to 
cases brought by the federal government.30 Local government entities like 
counties and cities do not have this immunity.

Remedies for discrimination by public accommodations
Title III of the ADA prohibits discrimination on the basis of disability by 
places of public accommodation.31 A person may file a Title III complaint 
with the Department of Justice or file a lawsuit in federal court. The 
complainant does not have to file a complaint before suing in court. In 
circumstances in which the court believes it would be just, an attorney may 
be appointed for the complainant.32 The Department of Justice may also file 
suit on behalf of the complainants if the defendant has engaged in a pattern 
or practice of discrimination or if the case raises an issue of general 
public importance.33

The traditional remedy in a private Title III lawsuit is injunctive relief. 
Injunctive relief may include an order to make a facility accessible, to 
provide auxiliary aids or services, modify an existing policy or practice, 
or whatever else the court feels would be appropriate to enable to full use 
and enjoyment of a place of public accommodation for people with 
disabilities.34

The court may also choose to award attorneys' fees at its discretion.35 This 
discretion is limited and ordinarily a prevailing plaintiff should recover 
attorney fees unless special circumstances would make such an award 
unjust.36 The rationale is that if successful plaintiffs were forced to bear 
their own attorneys cost, few parties would be able to afford to advance the 
public interest using only court-ordered injunctions.37 Prevailing 
defendants may be entitled to attorneys fees if the lawsuit was frivolous, 
unreasonable, or brought in bad faith.38

In Title III cases brought by the Department of Justice, the court may award 
injunctive relief, compensatory damages, and other relief that the court 
believes is appropriate, like attorneys' fees and court cost. In cases that 
are to vindicate the public interest, the Department of Justice may also 
seek civil penalties of up to $50,000 for the first violation and up to 
$100,000 for each subsequent violation.

The lack of money damages in private lawsuits may seem like a disincentive 
to a potential plaintiff, but there may be analogous state discrimination 
laws that do provide damages. A plaintiff may also combine other remedies 
available under state law with the ADA.

For example, suppose a wheelchair user is physically injured from going down 
a steep ramp that does not meet ADA guidelines. In this scenario, a 
plaintiff may be able to receive compensatory damages under state personal 
injury and negligence laws using the lack of ADA compliance as evidence 
against the defendant.

Like Title II, Title III is also silent with respect to statutes of 
limitations. Federal courts will use the most analogous statute of 
limitation under state law.39 Therefore, the statute of limitation may be 
different in every state and a potential litigant should check with an 
attorney to determine the applicable time limitation.




Cheryl Echevarria
Independent Travel Consultant
C10-10646

http://Echevarriatravel.com
1-866-580-5574

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