Legal E-Bulletin

Enforcement Procedures and Remedies under the ADA
Part I : Employment Discrimination

I. INTRODUCTION

In an E-Bulletin issued last fall entitled, "ADA Permits Hostile Work Environment Claims Against Employers (http://www.ilru.org/dbtac/Materials/list/ebulletins/hr/july2001.html) we reviewed cases dealing with disability based harassment, highlighting Flowers v. Southern Regional Physician Service, 247 F.3d 229 (5th Cir. 2001). In Flowers, the jury awarded $350,000 in damages, the trial judge reduced the award to $100,000 and the Court of Appeals vacated the award and remanded the case back to the district court for a recalculation of the damages. A question that always surfaces in these is, "What rules govern damage awards in ADA cases and what remedies are available in an ADA case?"

II. LIABILITY AND DAMAGES IN ADA CASES.

Every case has two major parts: liability and damages. Liability determinations address the issue of whether or not the defendant violated the law. Yet, not every violation of the law results in a compensable harm to the plaintiff. In addition to proving a violation of the law, the plaintiff also has the burden of proving that violation caused him to suffer a legal injury for which the law will permit compensation. Damages are not presumed and the amount of compensation must be affirmatively proved with substantial evidence of an injury.

Moreover, the remedies that the law permits are limited to those specified in the statute. The amount of recovery available within the specified prescribed categories of damages is also capped by statute. This article will look at the scope of available remedies and procedures under the various titles of the ADA.

At the outset, it is important to note that each Title of the ADA has a different set of enforcement procedures and remedies, which apply only to claims brought under that Title. Remedies that are available under one Title are not necessarily available under another Title, unless the enforcement procedure under that Title specifically provide for that particular remedy. Moreover, the ADA does not establish new enforcement procedures and remedies. Rather, each Title of the ADA borrows enforcement procedures and remedies from other statutes by incorporating those other procedures and remedies into the ADA by reference.

III. TITLE I OF THE ADA BORROWS ITS ENFORCEMENT PROCEDURES AND REMEDIES FROM TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

A. Nature of Title I Remedies.

Title I of the ADA, which covers discrimination in private employment, borrows its enforcement procedures and remedies from Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12117(a). Generally, the available remedies under Title I of the ADA are back pay, front pay, compensatory damages and punitive damages. Equitable relief is also available. In addition, Title I permits the prevailing party to recover his attorney's fees and costs. 42 U.S.C. § 2000e-4 to e-6 and e-8 to e-9.

Title I confers a private right of action on aggrieved individuals, which allows aggrieved individuals to bring a claim on their own behalf. Title I also confers a right of a public enforcement action on the Equal Employment Opportunity Commission for claims against private employers, and confers the right of a public enforcement of action on the United States Attorney General for actions against states or local governments. 42 U.S.C. § 2000e-5.

One of the unique features of the enforcement provisions for employment discrimination under the ADA is the elaborate system of administrative procedures. The administrative procedures are mandatory prerequisites to filing a claim in court.

B. Mandatory Administrative Procedures

1. Timely Charge a Prerequisite to a Civil Action.

A person aggrieved by an act of employment discrimination must first file a charge of discrimination with the United States EEOC. Because a charge of discrimination is a mandatory prerequisite to a civil action, the courts do not have the authority to consider any claim that has not been first presented to the EEOC in a timely fashion.

Charges of employment discrimination must be filed with the EEOC no more that 180 days after the last act of discrimination. In some jurisdictions the charge of discrimination must be filed no more than 300 days after the last act of discrimination. If a charge is not timely filed with the EEOC (with rare exceptions), the claim is forever barred. Whether the aggrieved person has 180 or 300 days to file a charge of discrimination depends on whether that jurisdiction has a state or local fair employment practices statute or ordinance under which the aggrieved person may bring their charge of discrimination.

2. Longer Time to File in Jurisdiction with a Local Fair Employment Practices Agency.

In jurisdictions that have a state or local fair employment agency that prohibits disability based discrimination, the time in which the plaintiff has to file with the EEOC is 300 days. When a charging party has a state or local agency to turn to, the federal law will defer to the local authority and give it the time necessary to investigate and take action before the federal authority will become involved. The statute favors the local enforcement of anti-discrimination laws. However, in jurisdictions where there is no local enforcement agency, the EEOC will have primary jurisdiction over the charge, and the charge must be filed within 180 days of the act of discrimination.

3. Equitable Tolling of the Limitation Period.

There is an exception to the relatively short time periods in which to file a charge of discrimination under the ADA. It is known as the equitable tolling doctrine. Where an aggrieved person is prevented from discovering facts that would enable them to know of the discrimination, the limitation period is tolled until such time that the aggrieved person learns of facts that would reasonably cause them to believe the employer acted in a discriminatory manner. The plaintiff has the burden of showing that the employer engaged in acts of concealment or deception which prevented the plaintiff from reasonably being able to discover that the employer was motivated by the plaintiff's disability status. The 180 or 300 day time period does not begin anew. Rather the plaintiff must act with reasonable promptness once he learns that his civil rights may have been violated.

4. EEOC Investigation of a Charge of Discrimination.

Once the charging party files a charge with the EEOC, the EEOC has a duty to investigate the allegations in the charge. The notion of a "federal investigation" often conjures up visions of a the dogged pursuit of all the facts by a team of well trained and highly skilled investigators in somber dark suits. However, the average EEOC investigation would not likely match that popular notion. The EEOC is obligated to investigate each charge, but the amount of time and resources that it invests in an investigation are within the discretion of the EEOC. Given the limits on resources and the great volume of charges that it processes, the EEOC carefully controls the way it spends its resources. Unless there is a good reason to invest substantial time and resources into an investigation, the EEOC will typically limit its investigation to the essential facts and make a determination based on the facts in the charge, the response of the employer and whatever documents the parties produced.

In some cases, the EEOC will invest a substantial amount of resources in an investigation. It is often difficult to predict particular cases in which the EEOC will mount a comprehensive investigation. There are several factors that seem to guide their decisions on whether to invest resources in an investigation. The first factor is the prima facie strength of the evidence. If it does not appear on the face of the charge or the initial evidence presented by the charging party that the claim has merit, the EEOC will not likely invest substantial resources in the investigation. A second factor is the number of individuals affected by the alleged discrimination. The more individuals affected, the more likely the EEOC will invest substantial resources in the investigation. Many other factors also play a part in the determination, such as whether the EEOC perceives a public interest that needs to be addressed, whether there is an important issue of law in the case, and whether the case involves an issue important to an EEOC policy or enforcement objective.

5. EEOC Determinations and Conciliation

a. Cause, No-cause, or Neutral Determinations.

After conducting an investigation, the EEOC will make a determination on the merits of whether there exists reasonable cause to conclude the charge of discrimination is true. The EEOC will either find "cause" or "no cause" on the merits. Recently, the EEOC has begun making "neutral" determinations. This means that the EEOC concludes that it is unable to determine whether the allegations in the charge are true. The EEOC began issuing neutral determinations as an administrative convenience to deal with a back-log of cases, which once numbered over 100,000 cases.

b. Conciliation Attempted Only with "Cause" Findings.

If the EEOC finds that reasonable cause exists to conclude that the charge of discrimination is true, than the EEOC has the obligation to attempt conciliation. Conciliation is not attempted where there is a "no cause" finding or a "neutral" determination. Conciliation is an informal process initiated by the EEOC in which it attempts to resolve the dispute between the parties. The EEOC ostensibly acts as an "honest broker" seeking to forge an agreement that will resolve the dispute. However, the EEOC it is not truly a neutral party because it has made a finding that the employer has violated the law after a review of the evidence, and it is advocating for a remedial action by the employer.

c. Options When Conciliation Fails.

If conciliation does not result in a settlement that is to the satisfaction of the EEOC, the EEOC has two options. It may elect to exercise its right to initiate a civil action in the name of the United States against the employer. The aggrieved individual has the right to intervene in the EEOC's cause of action as the real party of interest. Generally, the EEOC will not initiate a civil action unless there are important issues of public interest that must be vindicated through a public enforcement action. Also, if there is a pattern and practice of discrimination that potentially affects a large number of individuals, the EEOC may bring a civil action. There are other factors the EEOC considers, but it brings an action only in rare circumstances.

If the EEOC declines to initiate a civil action after conciliation fails, it concludes its processing of the case and issues a right-to-sue letter.

6. Issuing a Right-to-Sue Letter when Administrative Procedures are Exhausted.

a. When a Right-to-Sue Letter Is Issued.

When the EEOC concludes its processing of a charge, the administrative procedures are exhausted and the aggrieved person may then file a civil action. The EEOC may issue a right-to-sue letter in several different circumstances. First, as noted above, the EEOC may issue a right-to-sue letter after it has found cause but failed to achieve conciliation and elected not to initiate a public enforcement action. There are other more frequent occasions when the EEOC will issue a right-to-sue letter. If the EEOC finds no cause on the merits, it will conclude its processing of the charge and issue a right-to-sue letter. Also, when the EEOC is unable to make a determination and issues a neutral (or "no determination" determination), it will conclude its processing of the charge and issue a right-to-sue letter. If the charging party requests the EEOC to issue a right-to-sue, the EEOC will typically oblige the request. Typically, the EEOC will not issue a right-to-sue letter at the charging parties request until 180 days after the date the charge was filed. A charging party will often request a right-to-sue when they are prepared to file a civil action and do not want to wait for the EEOC to conclude its processing of the case. Indeed, the EEOC may take as long as two years or more to make a determination.

b. Purposes of the Right-to-Sue Letter.

A right-to-sue letter serves at least two important functions. First, the letter gives notice that the EEOC has concluded its processing of the charge and that the administrative procedures have been exhausted. Because the exhaustion of administrative remedies is a necessary prerequisite to filing a civil action, the right-to-sue letter is essential evidence for any civil action under Title I of the ADA. Second, the right-to-sue gives notice of the relatively short time period to initiate a civil action. The plaintiff has only 90 days after the right-to-sue letter is issued to file a civil action in court. If he fails to file a law suit in 90 days, his claim is forever barred.

C. The Remedies Available in Court.

1. Limited Scope of Remedies.

When the ADA was originally enacted in 1990, the remedies for employment based discrimination were quite narrow. They were limited to lost income (back pay and front pay), equitable relief and recovery of attorney's fees. The plaintiff had no right to a jury trial before 1991. All issues were decided by the court. The scope of the remedies changed in 1991 with the Civil Rights Act of 1991. The Civil Rights Act of 1991 changed the remedies that are available under Title I of the ADA (as well as Title VII of the Civil Rights Act of 1964). The Civil Rights Act of 1991 added to the range of remedies the possibility to recover compensatory and punitive damages. It also added the right to a jury trial.

2. Compensatory Damages.

Compensatory damages are available for both pecuniary and non-pecuniary compensatory damages. Pecuniary compensatory damages are expenses that the aggrieved individual incurred because of the discrimination. An informal rule of thumb is that items of damage for which one receives a receipt, will be pecuniary compensatory damages. This would include expenses to locate other work, medical expenses, or counseling expenses (in cases where the discrimination has caused a mental or emotion harm that requires such treatment). Non-pecuniary compensatory damages are personal injuries that compensate the individual for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other forms of mental or emotional injury or loss caused by the discrimination. The reason that it is important to make the distinction between pecuniary and non-pecuniary compensatory damages is that some damages are capped by statute, but not all elements of damage are included in the caps.

3. Punitive Damages.

Punitive damages are available only when the evidence shows that the defendant acted with malice or with reckless disregard for the federally protected rights of other. This generally means that the defendant had to act not merely with the intent to perform the action which was discriminatory, but act with the specific intent to cause the individual harm. The defendant may also be liable for punitive damages if they act without regard for the civil rights of the employees. This might arise in a situation where the employer knows that his conduct is wrong or may harm the plaintiff, but does not care.

One issue that had confused courts for some time was whether the same degree of intent that supports liability for intentional discrimination also was sufficient to support an award of punitive damages. The Supreme Court in Kolstad v. American Dental Association concluded that punitive damages are available only where the plaintiff can show a higher degree of culpability on the part of the defendant. Merely showing an act of intentional discrimination would not necessarily be sufficient to warrant punitive damages. Punitive damages would only be appropriate where the defendant acted with malice or reckless indifference to the federally protected rights of an individual.

While punitive damages require a greater showing than simple intentional discrimination, the nature of the proof required is not egregious or outrageous conduct. The Supreme Court in Kolstad v. American Dental Association concluded that Congress intended to make punitive damages available only in a subset of all cases where intentional discrimination is proven. The type of discrimination that entitles a person to recover compensatory damages is different from the type of discrimination that entitles the person to recover punitive damages. Although the Supreme Court accepted the two tier conception of the liability, the Supreme Court rejected the contention that a showing of "egregious conduct" or "outrageous conduct" is required. Punitive damages are available where the plaintiff shows that the discriminator is not just aware of his actions and the affect of his actions, but that the discriminator was aware that his conduct was wrong or harmful, and engaged in the adverse employment action knowing that his actions are contrary to the employee's federally protected rights.

4. Caps on Damages

a. Levels of the Caps on Damages.

In addition to expanding the scope of remedies for employment discrimination, the Civil Rights Act of 1991 also capped the amount a damages that an employee may recover. The caps are based on the size of the employer.

CAPS ON DAMAGES UNDER CIVIL RIGHTS ACT OF 1991

• More than 14 and fewer than 101 employees Damages shall not exceed $50,000
• More than 100 and fewer than 201 employees Damages shall not exceed $100,000
• More than 200 and fewer than 501 employees 201_500 employees Damages shall not exceed $200,000
• More than 500 employees Damages shall not exceed $300,000

b. Damages Included in the Cap.

Not all elements of damages are subject to the caps. Back pay, front pay and interest on back and front pay is not subject to the caps. Past pecuniary compensatory damages are not subject to the caps - so the plaintiff can be made whole by recovering their out-of-pocket expenses caused by the discrimination. However, future pecuniary compensatory damages are subject to the caps and damages for all non-pecuniary losses are subject to the caps. If a plaintiff requires continued psychological counseling after the date of judgment, those future damages will be subject to the cap. Non-pecuniary compensatory damages for mental and emotional injuries would be capped. Likewise, punitive damages are also subject to the caps.

The statute prohibits the jury from being informed about the caps on damages, so often the award of damages will often exceed the amount of the applicable cap. The court, of course, will reduce the jury award to bring the damage award in line with the statutory limits.

c. Other limitations of Punitive Damages.

In ADA cases where the plaintiff complains of the employers failure to provide a reasonable accommodation, punitive damages are not available if the employer can show that it made good faith efforts in consultation with the plaintiff in an effort to identify and make a reasonable accommodation that would be effective and not impose an undue hardship on the employer. From the employer's point of view, the employer has a genuine incentive to make a good faith effort to identify and make a reasonable accommodation. Even if the good faith effort is unsuccessful, the employer will have avoided the possibility for punitive damages by engaging in the good faith effort.

5. Equitable and Injunctive Relief.

The court is also authorized by the statute to award injunctive relief to the extent necessary to cure the discriminatory practices and to prevent future violations of civil rights. Equity is a broad flexible remedy that is always tailored to the circumstances of the case. The great value of equitable relief to enforcement of civil rights laws is that an award of equitable injunctive relief enables the court to retain continuing supervision over the unlawful employment practice even after the trial is over. The parties may return to court, without filing a whole new law suit and having to exhaust administrative remedies, where the employer has acted contrary to the court's order. Not only is the court able to revisit the equitable relief and grant other more effective remedies, but the court may also exercise its power to hold non-compliant parties in contempt of court until they purge themselves of the contempt. It is a powerful incentive when a corporate manager has to choose between complying with the court's order or being detained in the court lock-up. Although, the mere specter of being held in contempt is sufficient incentive to keep most employers in compliance with a court ordered remedy for discriminatory employment practices.

6. Attorney's Fees.

Finally, the prevailing party is entitled to recover a reasonable attorney's fee at the discretion of the court. The courts have generally concluded that the right to recover attorney's fees is a right granted to the prevailing plaintiff, and a prevailing defendant is not entitled to attorneys fees unless the claim is frivolous and without merit. Some courts have been increasingly willing to award attorney's fees against a plaintiff who losses his claim. Attorney's fee are not an automatic element of damages. Attorney's fees have to be proven like any other element of damages. Whether to award attorney's fee is within the discretion of the court, and the court may conclude that the interests of justice are not served by awarding attorneys fees to the plaintiff. Also, the award is not for all fees, by only those fees that are reasonable - both reasonable in the number of hours worked and in the rate charged for those hours. Duplicative or unnecessary work may be excluded from a fee award. Unreasonable high rates of fees will not be awarded. What is reasonable will depend on a number of factors include the skill, experience of the lawyer and the complexity and difficulty of the case.

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The Legal E-bulletin is distributed monthly for subscribers interested in a  comprehensive review of litigation that is occurring on a national and regional level in regard to the Americans with Disabilities Act and other disability related laws. Beth Sufian and James Passamano of Sufian and Passamano, attorneys who are experts in the field of disability law, facilitate it. The bulletin is intended to provide technical assistance and information on the litigation that is shaping the meaning of the ADA and other laws.  The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA. NIDRR is not an enforcement agency.

Project staff are also available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions. All questions are answered confidentially.  The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

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