Ninth Circuit Says No Compensatory or Punitive Damages in ADA Retaliation Cases
By Ted Olsen
The Americans with Disabilities Act has many provisions that appear to incorporate the remedies and enforcement procedures of Tile VII of the Civil Rights Act, as amended. Until recently, employers have generally assumed that any and all damages available to Title VII plaintiffs are also recoverable by any prevailing plaintiff in any ADA case.
To the pleasant surprise of employers, however, in December 2009, a panel of the Ninth Circuit Court of Appeals ruled that compensatory and punitive damages, which are provided by Title VII, as amended by the 1991 Civil Rights Act, are not recoverable by a prevailing plaintiff in an ADA retaliation case (as distinguished from an ADA disability discrimination case). Further, ADA retaliation claims may not be decided by juries. Alvarado v. Cajun Operating Co., 2009 U.S. App. LEXIS 26999 (9th Cir., Dec. 11, 2009).
The compensatory damages provided by Title VII are intended to redress plaintiffs' emotional injuries and other non-economic losses resulting from prohibited discrimination. The punitive damages provided by Title VII are designed to punish employers for their unlawful actions. The compensatory damages and punitive damages are available in both discrimination and retaliation cases under Title VII, and are capped at $50,000, $100,000, $200,000, or $300,000, depending on the size of the employer. Both types of damages are in addition to back pay, front pay, other equitable relief, and attorney fees.
The Alvarado case provides that, in ADA retaliation cases, back pay, front pay, other equitable relief, and attorney fees are available. Because such relief is considered equitable in nature, and because judges decide claims in equity, the Court held that plaintiffs in ADA retaliation lawsuits are not entitled to jury trials. Alvarado also confirms that all Title VII remedies are available in disability discrimination cases.
The Ninth Circuit is known for its tendency to interpret employment laws in favor of employees, making the Alvarado decision especially surprising. Many courts have ruled differently. However, as the Court stated in its decision, the Alvarado ruling is based specifically on the absence of any reference to the ADA retaliation provisions in the section of Title VII expressly governing compensatory and punitive damages, 42 U.S.C. § 1981a(a)(2). The Court explicitly rejected the Equal Employment Opportunity Commission's position on this question. The only other federal court of appeals that has addressed the issue is the Seventh Circuit, which reached the same result. See, Kramer v. Banc of Am. Sec., 355 F.3d 961, 965 (7th Cir. 2004), cert. denied, 542 U.S. 932 (2004).
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