Emotional Distress Damages and the Rehabilitation Act

Can an individual get damages for the emotional distress suffered as a result of violations under the Rehabilitation Act (29 U.S.C.A. §701 to 796 (1973))? What if that is the only harm suffered and they have no financial losses? Can an organization still be liable? In New Jersey, the answer to these questions is likely yes.

The Rehabilitation Act (the “RA”) provides that individuals with a disability cannot be “excluded from, denied the benefits of, or be subjected to discrimination under” programs that receive federal funding. Individuals who believe they were discriminated against may sue an organization under the RA, alleging a violation. There is a split among Circuit Courts, however, as to whether emotional distress damages are an available remedy under the Act. For example, the Fifth Circuit Court has found that emotional distress damages are not warranted. In Cummings v. Premier Rehab, a deaf and legally blind patient filed suit against a physical therapy provider that refused to provide her with an American Sign Language (ASL) interpreter. The plaintiff sought emotional distress damages only. The Fifth Circuit dismissed the plaintiff’s claims, and held that because emotional distress damages are not available under a “breach of contract” case, they are not available under the RA.

Conversely, the Eleventh Circuit Court in Sheely v. MRI Radiology Network, P.A., found that emotional distress damages were warranted where a deaf plaintiff and her service dog were prohibited from accompanying her minor son into his MRI. The Court explained that even where only emotional distress was suffered by the plaintiff, it was nonetheless sufficient to award damages, noting that it was “the only available remedy to make good the wrong done.” Importantly, the plaintiff did not need to show physical symptoms of her emotional distress in order to recover damages.

More recently, on February 5, 2021, the Third Circuit addressed this issue in Swogger v. Erie School District, 516 F. Supp. 3d 414 (W.D. Pa. 2021). In Swogger, the mother of a child with autism sued their school district for sending her child home after an emotional disturbance without a means of transportation. The plaintiff sought emotional distress damages only (in excess of $75,000 plus attorneys’ fees), and the school district filed a motion to dismiss on this basis. The district court ruled in favor of the plaintiff, finding that emotional distress damages are recoverable under the RA. The court compared both the Fifth and Eleventh Circuit decisions discussed above and found the Sheely decision to be more convincing. In particular, the court noted that “it seems entirely foreseeable that, when disabled individuals are denied the benefits of programs or services by a public entity or a recipient of federal funds, the aggrieved individual will often sustain emotional harm.” The court therefore concluded that federal funding recipients are on “fair notice” that they could be liable for emotional harm if they intentionally violate the RA. The school district appealed, and the parties ultimately reached a settlement on August 12, 2021.

Based on the Swogger holding emotional distress damages are likely recoverable for violations of the RA in the Third Circuit. However, to be recoverable these violations must be “intentional”, defined as “deliberate indifference” on the part of the defendant. Accordingly, parties defending against these claims should be sure to consult with legal counsel as to potential legal and monetary exposure as well as how the ruling in Swogger may impact their case. Do not hesitate to contact a Labor & Employment litigation attorney at Lindabury McCormick if you want further guidance for your organization on this issue or others.