4.8 Enforcement and Remedies

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

4.8 ENFORCEMENT AND REMEDIES

All forms of relief currently available to other victims of intentional employment discrimination under title VII of the Civil Rights Act of 1964 are available to victims of discrimination based on disability. ²⁷⁷ Individuals may

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obtain injunctions, reinstatement, back pay, compensatory and punitive damages, ²⁷⁸ and attorney fees. ²⁷⁹

In Miller v. Pilgrim's Pride Corp., ²⁸⁰ the jury found in favor of the plaintiff on his ADA claim, but also found that the defendant would have made the same decision to discharge the plaintiff regardless of his disability. Since a mixed motive is not a complete defense to discriminatory discharge under the ADA, the court granted the plaintiff's request for a declaration that he was terminated in violation of the ADA. The court also permitted a limited recovery of the attorney fees and costs related to the ADA claim because the plaintiff's attorneys achieved a partial victory in the case.

When the complaint is based on failure to provide reasonable accommodation, compensatory and punitive damages are not available if the employer undertakes good faith efforts, in consultation with the disabled person, to identify and make reasonable accommodations that will provide the individual with an equally effective opportunity and will not cause an undue hardship on the operation of the business. ²⁸¹ Compensatory and punitive damages are also not available in a claim for violation of the ADA's anti-retaliation provisions. ²⁸²

Punitive damages are available only if the employer engaged in discrimination with malice or with reckless indifference to the victim's rights. ²⁸³ Neither compensatory nor punitive damages are available if the discrimination

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alleged is not intentional but is based on "disparate impact." ²⁸⁴ Punitive damages may not be recovered against a governmental agency or political subdivision.

At least one district court has held that evidence of a plaintiff's receipt of workers' compensation benefits is admissible, and it could be argued that any award of damages should be reduced by the workers' compensation benefits received. ²⁸⁵ The court held that workers' compensation benefits are paid for by the employer through an insurance carrier. Accordingly, unlike unemployment compensation, which is paid for by the state through collected taxes, workers' compensation benefits are not barred by the collateral source rule. ²⁸⁶

A court "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." ²⁸⁷ Because this provision borrows its fee-shifting language from other civil rights statutes, several courts have held that the standard enunciated by the Supreme Court in Christiansburg Garment Co. v. EEOC ²⁸⁸ for fee-shifting by prevailing defendants applicable in civil rights cases also applies to 42 U.S.C. § 12205. ²⁸⁹ Thus, the district court found "little doubt" that the same policies underlying awarding attorney fees in civil rights claims apply to disability rights claims. ²⁹⁰

Under title VII, defendants can obtain attorney fees only if the suit was frivolous, unreasonable, or groundless, or if the plaintiff continued to litigate after it clearly became so. ²⁹¹

If an award of legal fees is warranted in a civil rights action, determining the award amount consists of a...