Why the majority and dissenting opinion in the Ninth Circuit case of Weaving v. City of Hillsboro both got it wrong

I first found out about this case- Weaving v. City of Hillsboro, a published decision from the Ninth Circuit decided August 15, 2014- from reading Jon Hyman’s excellent blog entry on it, which can be found here.

Jon does an excellent job of describing the facts of the case and I quote from his blog entry on this:

“Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police officer, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006. His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis. The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.”

Jon was not the only one surprised. I will go even further than that. I believe that the Ninth Circuit majority and dissenting opinions both got it wrong and here is why:

1. The majority opinion says that the plaintiff’s mental impairment, ADHD, did not substantially limit a major life activity of interacting with others because it simply was not severe enough.

2. The dissenting opinion says there was plenty of evidence to indicate that the major life activity of interacting with others was plenty severe and that it was up to the jury to decide that issue as a question of fact, which they did in the plaintiff’s favor.

3. Both the majority opinion and the dissenting opinion are, in my opinion, wrong for the reasons that follow in the following paragraphs.

4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court of the United States held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. This severely restricted or prevented principal was then adopted by the courts across a whole range of major life activities. The result of which was to severely limit the number of people covered by the ADA.

5. The severe curtailment of the scope of the ADA led to the passage of the Americans With Disabilities Act Amendments Act signed by George W. Bush, which went into effect January 1, 2009.

6. The amendments to the ADA specifically state that the previous standard used by the EEOC to define what is a substantial limitation on a major life activity (“significantly restricted”), was too high of a standard. Further, the amendments to the ADA also specifically state that it is rejecting the Toyota Motor standard with respect to what it means to be substantially limited in a major life activity.

7. The amendments to the ADA also specifically state that regulatory bodies have the authority to implement definitional terms.

8. The EEOC took advantage of its authority to implement definitional terms by adding the major life activity of interacting with others to what would be considered a major life activity (the Department of Justice has taken the same approach with respect to its proposed regulations implementing titles II and title III of the ADA).

9. The EEOC defines substantial limitation as being whether a person is substantially limited in a major life activity as compared to most people in the general population.

10. As discussed in this blog entry and in this case, the EEOC regulations are entitled to Chevron deference by the courts.

11. What paragraphs 4-10 mean is that under the ADA as amended whether a physical or mental impairment is severe to some degree is not the issue. Rather, the issue is whether the individual is substantially limited in a major life activity as compared to most people in the general population. To say otherwise, means that you are either not giving the EEOC regulation the deference that it is due or you are bringing back the Toyota Motor standard, which was specifically overruled by the amendments to the ADA, neither of which makes any sense. Alternatively, I suppose you can make an argument that for EEOC added disabilities, the standard for what is a substantial limitation could be higher than the standard for disabilities specifically mentioned in the ADA. However, even that argument doesn’t fly because the EEOC was given the authority under the amendments to the ADA to implement definitional terms and the implementation of that authority is entitled to deference.

Okay, so now we know that the Ninth Circuit majority and dissenting opinions in this case, again in my opinion, got on the wrong highway. What would be next under this analysis?

11. In order to be protected under the ADA, you must have a disability and you must be qualified. Under title I of the ADA, a person with a disabling condition is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. (29 C.F.R. § 1630.2(m)).

12. Was interacting with others an essential function of this person’s job? I don’t see how you could claim otherwise. After all, this person was a police officer which meant interacting with his peers, supervisors, and members of the public in order to do his job. Could he do the essential functions of the job with or without reasonable accommodations? On that, the dissent thought it was possible.

13. It is the jury that gets to decide what are the essential functions of the job and that determination is entitled to a high degree of deference. See Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 708 (5th Cir. 1997).

14. Accordingly, absent evidence that no reasonable juror could have found in the plaintiff’s favor, the jury verdict should have been allowed to stand if the proper analysis was used.

Takeaways:

1. I agree with Jon that even with Weaving, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. I also agree with John that in the right case, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail with arguing the employee’s medical condition does not rise to the level of a substantial limitation on a major life activity and therefore, is not a person with a disability.

2. However, Takeaway 1 leads to the question of who gets to frame the issues before the judge. Is it the parties or is it the judge. To confirm my own experience, I actually asked that question to a seasoned litigator, my friend and colleague Robin Shea who also has a blog in my blogroll. She told me that it is often the parties that get to frame the issues, but there are judges that will step in and direct the parties to go in a different direction. Therefore, if I am a plaintiff attorney and the defense is trying to frame the issue to argue that the plaintiff’s physical or mental impairment does not rise to the level of a disability using the Weaving construct, I would counter that argument with the approach in this blog entry. It should be an extraordinarily unusual case where the defense would be successful in successfully arguing that the medical condition does not rise to the level of a substantial limitation.

3. I do agree with John that the better (safer?) course of action, is to assume the medical condition is an ADA-protected disability, and instead argue the employer cannot offer any reasonable accommodation enabling the employee to perform the essential functions of one job.

4. I agree with John that you can get to the same place using the proper ADA analysis rather than the Weaving construct, BUT not always so. This case may be, and is in my opinion, one of those cases where the Weaving construct, which brings back Toyota Motor from the dead, and the proper ADA analysis, which would take you into essential functions of the job, do lead to different conclusions.

5. Finally, this blog entry may point out the need for judges to get training on the ADA so that they don’t get taken down the wrong highway by the parties.

The hammer falls: DOJ settles with the State Bar of Louisiana

In a previous post, I talked about how the Department of Justice had issued a letter to the Louisiana Supreme Court with respect to the way they went about dealing with bar applicants with a history of MH. This blog entry will talk about the settlement that DOJ entered into with the Louisiana Supreme Court.

Here are the salient provisions:

1. While the Louisiana Supreme Court did not admit liability, nevertheless they agreed to completely overhaul their practices and pay $200,000 to compensate seven people harmed as a result of their actions;

2. The Louisiana Supreme Court must refrain from requiring applicants to complete question 25-27 of the national conference of bar examiners request for preparation of a character report as that request form was in effect prior to February 24, 2014;

3. The Louisiana Supreme Court cannot inquire into the mental health diagnosis or treatment unless: A) an applicant voluntarily discloses a history of MH in order to explain conduct or behavior that might otherwise warrant denial of admission or the voluntary disclosure was made in response to the new questions 26 or 27 of the national conference of bar examiners request for preparation of a character report; or B) the character and fitness committee learned from a third-party source that the applicant had an MH diagnosis or treatment as an explanation for conduct or behavior that may otherwise warrant denial of admission;

4. Regardless of how the character and fitness committee finds out about the history of MH, any inquiry into that history must be narrowly, reasonably, and individually tailored;

5. If the character and fitness committee goes ahead and makes that inquiry, the character and fitness committee, or a medical professional retained by the committee, must first request a statement from the applicant and only if reasonably deemed necessary by the character and fitness committee or by the medical professional retained by that committee, the applicant’s treating professional.

The key here is the imposition of an objective standard on the decision-making process of whether to conduct a further inquiry into a person’s MH history after the applicant with an MH history has disclosed.

6. If information from the treating professional is sought, the treating professional’s statement has to be accorded considerable weight, and medical records cannot be requested unless a statement from, and any further dialogue with, the applicant’s treating professional failed to resolve the committee’s reasonable concerns regarding the applicant’s fitness to practice law.

A couple of keys here. First, considerable weight has to be given to the treating professional’s statement. Also, this kind of provision is similar to what the Department of Justice did in its settlement with the law school admission Council, which was discussed in this blog entry. Second, the punctuation in the settlement agreement makes it unclear whether before medical records can be requested, that the character and fitness committee must do both get a statement from the treating professional and dialogue with that treating professional before requesting medical records. Or, is it okay for the character and fitness committee to obtain medical records after receiving a statement from the treating professional assuming that the information they have from the treating professional has failed to resolve the character and fitness committee’s reasonable concerns regarding the applicant’s fitness to practice law. The critical language is surrounded by commas, and therefore, rules of grammatical construction would seem to suggest that a dialogue with the treating professional is not necessary providing the other criteria are met. Finally, note again the objective standard imposed upon the process. That is, the decision-making has to be reasonable.

7. In the event medical hospital records are properly requested, the request must be narrowly tailored and involve only information that is reasonably needed to assess the applicant’s fitness to practice law;

8. An independent medical exam is only a last resort and is only allowed where all other means have been exhausted so that the character and fitness committee still has reasonable concerns regarding the applicant’s fitness to practice law. In such an eventuality, the independent medical exam will occur at a time and location convenient to the applicant. All personal or health-related information has to be kept strictly confidential and accessible only by individuals with legitimate need for such access.

This particular paragraph doesn’t say anything about who is responsible for paying for that independent medical exam. To require the applicant to pay for the medical exam I arguably be construed as imposing an optical upon ADA enforcement. Again, that the settlement agreement doesn’t say, it would be reasonable to expect litigation on this point.

9. The Louisiana Supreme Court is prohibited from imposing conditional admission solely on the basis of mental health diagnosis or treatment;

10. The only time conditional admission for applicants who have revealed an MH diagnosis is proper, is when information properly obtained by the character and fitness committee indicates that: the applicant has a history of conduct that otherwise warrants denial of admission and the character and fitness committee believe that any conduct related concerns have not been fully mitigated by the applicant’s treatment or other factors; or B) the applicant has a condition that currently impairs the ability to practice law in a competent, ethical, or professional manner.

11. Where conduct that has occurred in the past would not warrant denial of admission when disclosed by applicants without a history of MH, that same conduct cannot be the basis for denial of admission or conditional admission when disclosed by the applicants with an MH diagnosis.

In other words, a person with an MH diagnosis should not be singled out for special treatment just because they have an MH diagnosis.

12. The Louisiana Supreme Court has to ensure that any conditions of admission imposed upon an applicant revealing an MH diagnosis, including the duration of any such conditional admission, are individually tailored to address the conduct or current impairment of the applicant’s ability to practice law that justified the recommendation.

In other words, a case-by-case analysis is required and just because a person has a certain MH diagnosis, doesn’t mean they automatically are subject to conditional admission or to specific conditional admission terms.

13. A person with an MH diagnosis that is conditionally admitted cannot be referred to monitoring by the entity that gets involved with the legal assistance program. Such applicants are subject to review by that entity only to the extent necessary for that entity to perform its customary enforcement function relating to an attorney’s compliance with a legal assistance program agreement.

14. Where a person is subject to ongoing review by that entity, the Louisiana Supreme Court has to ensure that any reporting requirements are reasonable and individually tailored to address the concerns justifying the conditional admission and that no additional fees or costs are paid to the court or to the lawyers assistance program by applicants on the basis of disability beyond any standard fees associated with conditional admissions;

15. Where there are reporting requirements, the ability of the entity monitoring such reporting to obtain further information about the attorney’s mental health treatment is also limited in much the same way as described in paragraph 5-7 above. That is: statement from the applicant have to be requested first; statement from the treating professional can only be requested if reasonably deemed necessary by the legal assistance program or the designated professional; the treating professional’s statement is accorded considerable weight; medical records cannot be requested unless the statement from the treating professional, and any further dialogue with that treating professional, fails to resolve reasonable concerns regarding the applicant’s fitness to practice law.

The same concerns raised in paragraph 5-7 above apply here as well.

16. The Louisiana Supreme Court cannot require or request attorneys and applicants to provide or authorize access to their health and mental health-related information except as described in the settlement agreement and only then by way of narrowly tailored releases limiting the scope of the released information reasonably needed to assess the attorney’s or applicant’s fitness to practice law. Further, the Louisiana Supreme Court has to limit the individuals having access to that information to those with a legitimate need for such access.

This particular provision is to do away with the practice where conditionally admitted attorney’s had their MH information freely exposed to the public.

17. Any and all personal health-related information (including information shared with the character and fitness committee, the legal assistance program, or a medical professional designated by the committee or the legal assistance program), has to be kept strictly confidential. Further, attorneys and applicants cannot be required or requested to waive confidentiality with respect to their private or health-related information except as detailed in the settlement agreement;

18. Applicants, attorneys and their employers cannot be required or requested to provide or authorize access to client files.

This should help eliminate the disincentive that employers had to hire a person with MH due to the monitoring requirements imposed by the Louisiana Supreme Court on such a person, where it wasn’t unheard of for the monitoring agency to ask for such files.

19. Louisiana Supreme Court cannot impose reporting requirements relating to an individual with an MH history conditional admission upon the employers of the attorneys or applicants.

Comments to paragraph 18 apply here as well.

20. Any reporting requirement relating to the conditional admission of an individual with an MH history cannot interfere with the applicant’s or attorney’s reasonable ability to practice law.

Comments to paragraph 18 apply here as well.

21. Any medical professional assisting the character and fitness committee or the legal assistance program must be given a copy of the settlement agreement and that medical professional has to comply with the settlement agreement;

22. The Louisiana Supreme Court has to provide training to the employees of the character and fitness committee, the monitoring entity, and the legal assistance program within 45 days of the settlement agreement and annually thereafter for the length of the agreement. That training has to be sufficiently detailed to enable staff to effectively implement all provisions of the agreement, including any policies and procedures developed pursuant to the agreement;

23. The national conference of bar examiners has a new 25-26 questions on their national conference of bar examiners request for preparation of a character report and the Louisiana Supreme Court will use that. With respect to 27, the court is going to use a new 27 and the wording will be substantively the same as specified in the settlement agreement. That particular question focuses on conduct and asks for a complete explanation including all defenses of any claims offering mitigation or as an explanation of that conduct;

24. The Louisiana Supreme Court within 45 days of the settlement agreement must ensure that all files of applicants disclosing MH diagnosis or treatment and whom were conditionally admitted have had their records sealed;

25. Within 45 days of the settlement agreement, Supreme Court of Louisiana must issue orders sealing: all previously entered orders conditionally admitting individuals disclosing MH diagnosis or treatment; any filings recommending probation of those individuals; and any orders terminating their probation. Within 50 days of the settlement agreement, copies of these orders to seal must go to legal databases (Lexis, Westlaw, fast case, and Bloomberg), with the request that they remove all the listed orders from their databases;

26. Within 45 days of the settlement agreement, the Supreme Court of Louisiana has to delete from its website copies of all orders conditionally admitting individuals that disclose their MH diagnosis or treatment and all references to those orders. Also, within that same timeframe, the Louisiana Supreme Court has to request the removal of that information from the Google and the Bing Internet search engines.

Interesting that Yahoo is not mentioned with respect to search engines. That must be an oversight.

27. Within 60 days of the date of the agreement, the Louisiana Supreme Court has to provide all individuals with a pending application that included an affirmative response to the old question 25-27 with new question 25-27. The evaluation of the applications of those individuals must be based upon their response to the new questions 25-27;

28. The Louisiana Supreme Court has to identify all individuals, including law student registrants, whom responded affirmatively to the old question 25-27 August 1, of 2008 and who were based upon the MH diagnosis or treatment conditionally admitted. With respect to those individuals, the Louisiana Supreme Court must: A) take all necessary steps to terminate the condition of admission unless the applicant engaged in conduct otherwise warranting conditional admission and the conduct related concerns have not been fully mitigated; or B) the individual has a condition currently impairing his or her ability to practice law in a competent, ethical, or professional manner. As above, court records pertaining to the conditional admissions have to be sealed, redacted or destroyed and that their individual medical records, medical history, diagnosis, prognosis, full names, and/or conditions of admission be not publicly available.

Under this particular provision of the settlement, it would be expected that attorneys with an MH diagnosis who took conditional admission because that was their only hope of practicing but whose condition have long since been mitigated, will have their conditional bar admissions removed.

29. With respect to applicants who responded yes to the old questions 25-27 and were denied admission, the Louisiana Supreme Court has to: reevaluate those original application to consider whether they may be qualified for the unconditional or conditional admission consistent with the settlement agreement; and for many individuals who are preliminarily determined to be qualified for possible unconditional or conditional admission that they may be qualified for unconditional or conditional admission under the revised policies for conducting character and fitness inquiries pursuant to the settlement agreement; invite such individuals to petition the Supreme Court of Louisiana for admission to the Louisiana bar without additional application expense for the character and fitness review; and reevaluate and process the updated applications and any additional information received on a priority basis in a manner consistent with the settlement agreement.

30. With respect to applicants, including law school registrants, who withdrew from the admission process following their affirmative response to all questions 25-27 because of an MH diagnosis or treatment the Louisiana Supreme Court has to: inform those individuals of the revisions to the process for conduct and character like as well the Louisiana Supreme Court and fitness inquiries per the settlement agreement; invite those individual to reapply for admission to the Louisiana bar without additional application expense for the character and fitness review; and subject to having passed the Louisiana bar examination, reevaluate and process their applications on a priority basis in a way consistent with the settlement agreement;

31. Within two weeks after each set of admission ceremony for the length of the agreement the Louisiana Supreme Court has to make detailed reports. That report is asking for very specific information the receipt of which would go a long way towards assuring the Department of Justice that the terms of the settlement agreement are being complied with.

32. Within 30 days of the settlement agreement, each party have to select and appoint a coordinator to oversee compliance with the agreement and to serve as a point of contact.

I find this particular provision a bit odd. A person from the Louisiana Supreme Court has to be appointed to oversee monitoring the agreement AND the same goes for a person from the Department of Justice. Therefore, the Department of Justice will select and appoint a single individual to oversee compliance with the agreement and the Louisiana Supreme Court will do the same. Interesting that they did not put in place independent monitoring, such as what happened with the law school admission Council. Further, nothing about whether the parties have to agree on who the coordinator is. It would seem that each party has unfettered discretion as to whom that individual might be.

33. The length of the settlement agreement is for four years.

In short, I sincerely doubt that the State of Louisiana is the only State Bar engaged in these kinds of practices. This settlement agreement is a wake-up call to any State Bar that is engaged in practices at all similar to what the Supreme Court of Louisiana was doing. What I suspect will happen here is that just as it is happening with the lost school admission Council and the LSAT, the settlement agreement will be used as a blueprint by plaintiff attorneys to structure their case in order to maximize their client’s chances of prevailing with Department of Justice involvement. Finally, I don’t see why the settlement agreement and the principles contained therein would not apply to other diagnoses besides the MH. For example, ADD and other learning disabilities.

Can You Get Compensatory and Punitive Damages in ADA Retaliation Claims

Your client asked for reasonable accommodations/modifications and was retaliated against for doing so. Let’s assume that the retaliation is fairly obvious. The question becomes when you file a retaliation claim are you going to be able to get compensatory and punitive damages? Might it depend upon the title or law that you are suing under? The answer to that question is yes! And is the subject of this blog entry. As is my usual practice, I have broken down the blog entry into different parts: the argument that compensatory and punitive damages are not allowed for retaliation claims under title I of the ADA; the argument that compensatory and punitive damages are allowed for retaliation claims under title I of the ADA; the question of whether compensatory and punitive damages are allowed for retaliation claims under title II of the ADA; the question of whether compensatory and punitive damages are allowed for claims alleging violation of § 501 of the Rehabilitation Act; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I
Title I of the ADA: The Argument That Compensatory and Punitive Damages Are Not Allowed For Retaliation Claims

The leading case saying that compensatory and punitive damages are not allowed for a retaliation claim involving title I of the ADA is Kramer v. Banc of America Securities, LLC 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit reasoned that if you trace the ADA out in terms of the remedies that are described for retaliation with respect to title I of the ADA, the inescapable conclusion is that punitive and compensatory damages, i.e. legal remedies, are not mentioned. Accordingly, compensatory and punitive damages are not possible. As pointed out by the Seventh Circuit in this case, that also means a retaliation claim based on title I of the ADA does not contain within it a right to a jury trial unless the defendant consents and that consent is not withdrawn.

II
Title I of the ADA: the Argument That Compensatory and Punitive Damages Are Allowed For Retaliation Claims

Kramer is gaining wide acceptance, but not everywhere. The contrary view comes from the Western District of Tennessee in the case of Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009). In this case, the Western District of Tennessee admitted that if you trace out the ADA in terms of the remedies that are described for retaliation with respect to title I of the ADA, you do reach the conclusion that compensatory damages are unavailable for ADA claimants alleging retaliation under title I of the ADA. However, the Western District of Tennessee felt that such a result should not be controlling if it produces a result that is absurd or contrary to other provisions of the ADA. The Western District of Tennessee then proceeded to rely on a US Supreme Court decision, Gomez-Perez v. Potter, 553 U.S. 474 (2008), where the Supreme Court of the United States held that where a statute provides remedies for intentional discrimination, it also necessarily includes retaliation in that calculus even where retaliation is not explicitly mentioned. Accordingly, the Western District of Tennessee reasoned since retaliation and intentional discrimination are both intentional discrimination, it would be an absurd result to hold that Congress intended compensatory damages to be available only under title I of the ADA but not under its retaliation provision.

III
With Respect to Compensatory and Punitive Damages under Title I of the ADA For Retaliation Claims, Who Is Right?

Baker is based upon Gomez-Perez and in particular the proposition that a claim of retaliation is not conceptually different from a claim of discrimination. However, that proposition may no longer be good law because a fundamental premise of the reasoning in University of Texas Southwestern Medical Center v. Nasser, as we have already discussed in this blog entry, is that retaliation and discrimination are conceptually very different from each other. Even so, the counter to that argument with respect to compensatory and punitive damages, would be that since both retaliation and intentional discrimination are intentional discrimination, the remedies shouldn’t be different. How will this shape up? Ultimately, the United States Supreme Court is going have to answer this question. The swing vote? You guessed it: Justice Alito! (Bet you didn’t see that coming:-) . I say that for three reasons. First, Justice Alito had a very straightforward record of deciding disability discrimination cases while he was on the Court of Appeals. Second, he is the author of the Gomez-Potter decision. Finally, it may come as a surprise, but Justice Kennedy when it comes to disability discrimination cases, has not been the swing vote, rather it was Justice Sandra Day O’Connor.

IV
With Respect to Compensatory and Punitive Damages under Title II of the ADA Are Compensatory and Punitive Damages Allowed for Retaliation Claims?

Taking the easy question first, punitive damages are not going to be allowed for a retaliation claim involving a violation of title II of the ADA. The United States Supreme Court in Barnes v. Gorman, 536 U.S. 181 (2002), made it clear that punitive damages are not allowed for violation of title II of the ADA or for violation of § 504 of the Rehabilitation Act.

However, with respect to compensatory damages, you get a different answer because the remedies of title II of the ADA trace back to the remedies for violating § 504 of the Rehabilitation Act, which does allow for compensatory damages providing, as we have discussed, if the plaintiff can show deliberate indifference.
See Bennett v. Board of Education Joint Vocational School District, 2011 U.S. Dist. Lexis 116412 (S.D. Ohio, October 7, 2011) (holding that Kramer does not apply to Title II of the ADA).
V
With Respect to Compensatory and Punitive Damages under § 501 of the Rehabilitation Act, Are Compensatory and Punitive Damages Allowed for Retaliation Claims

With respect to punitive damages, Barnes v. Gorman would seem to preclude that. With respect to compensatory damages, the answer is very much up in the air and here’s why: On the one hand, § 501 is a part of the Rehabilitation Act which allows for compensatory damages and retaliation is intentional discrimination. On the other hand, § 501 relates back to Title I of the ADA both in its statute and in its implementing regulations. Therefore, it might be possible to argue the logic of Kramer.

VI

Takeaways:

1. Retaliation claims always relate back to the underlying law involved. Therefore, the answer to whether compensatory and punitive damages are allowed for a retaliation claim involving violating the ADA, is going to depend upon the particular title and/or law involved.

2. For a nonfederal employee alleging retaliation, that person can expect the defense to argue per Kramer that compensatory and punitive damages are not available. Plaintiff will counter with Baker v. Windsor Republic Doors and Gomez-Potter. Ultimately, the Supreme Court will have to figure it out.

3. With respect to a claim of retaliation alleging a violation of title II of the ADA or § 504 of the Rehabilitation Act, compensatory damages are likely to be allowed but punitive damages are definitely out.

4. With respect to a federal employee, arguments exist both ways.

5. In short, for anybody alleging retaliation for violating title I of the ADA, title II of the ADA, § 501 of the Rehabilitation Act, one can expect defense attorneys to litigate the question of whether compensatory damages are available for a retaliation claim. In the case of a title I claim, one can also expect litigation over whether punitive damages for retaliation claim are available. With respect to title II of the ADA and §§ 501, 504 of the Rehabilitation Act, it is hard to believe that compensatory damages would not be allowed for retaliation claims, but we do know that punitive damages are out. In a nutshell, a plaintiff alleging retaliation can expect litigation over the remedies that the plaintiff will receive if the retaliation claim is successful.