A Case for Allowing Victims of ADA Retaliation and Coercion in Employment to Recover Legal Damages

• Author: Katie Marie Mueting
• Position: J.D. Candidate, The University of Iowa College of Law, 2007
• Pages: 1495-1521

J.D. Candidate, The University of Iowa College of Law, 2007; Bachelor of Journalism, The University of Nebraska-Lincoln, 2002. I would like to thank Kathleen Wolfe for suggesting the topic. I am indebted to Professor Jean Love for her suggestions and to Professor Jill Gaulding for her inspiration and thoughtful comments. I am grateful to the staff of the Iowa Law Review, Volumes 91 and 92, for their efforts and friendship and to my family and friends for their support and encouragement.

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I Introduction

When Banc of America Securities merged with NationsBank in 1998, Colleen Kramer, a loan officer with multiple sclerosis, began reporting to a new supervisor in Banc of America's Chicago office.¹ The new supervisor demoted Kramer and criticized her job performance.² In response, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), and Banc of America fired her a week later.³ She filed suit, alleging that Banc of America discharged her in retaliation for asserting her rights under the Americans with Disabilities Act of 1990 ("ADA").⁴ In Kramer v. Banc of America Securities, the Seventh Circuit Court of Appeals surprisingly⁵ determined that Kramer, as a plaintiff alleging ADA employment retaliation, was eligible for only equitable relief,⁶ such as front and back pay.⁷ She was ineligible for the legal damages she sought-both punitive and compensatory damages⁸-and was also ineligible for a jury trial.⁹ The Seventh Circuit is the only federal appellate court to have addressed the issue directly,¹⁰ although many other courts are following suit.¹¹

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This Note asserts that the Seventh Circuit's approach is inconsistent with the statute and fails to further the ADA's goal of eliminating disability-Page 1497 based employment discrimination.¹² Part II of this Note explains the ADA's statutory provisions and the Seventh Circuit's approach to interpreting those provisions.¹³ Part III argues that the Seventh Circuit erred in determining that compensatory and punitive damages are unavailable for victims of ADA retaliation in employment because Congress intended that legal damages be available, as evinced by the language, structure, and legislative history of the ADA and the Civil Rights Act of 1991.¹⁴

When Congress enacted the ADA, it expressly provided that the remedies available for victims of retaliation and coercion in employment would be the same as those available for violations of Title I of the ADA, which, as of 1991, included legal remedies.¹⁵ Additionally, Congress did not structure the ADA to specify a particular remedy for each type of violation in the statutory provision establishing the violation.¹⁶ In fact, the provision prohibiting ADA retaliation and coercion provides that the remedies available for violations are those that are available under other titles of the ADA.¹⁷ Specifically, victims of ADA retaliation and coercion in the context of employment are entitled to the remedies that are available for violations of Title I.¹⁸ Title I, in turn, links the remedies available to those that arePage 1498 available for violations of the Civil Rights Act.¹⁹ This linkage indicates congressional intent that remedies be expanded for ADA violations, if, in the future, Congress expands the remedies for violations of these linked statues.²⁰ The legislative history of the ADA also suggests this conclusion.²¹ Because an interpretation providing for legal damages is consistent with the language, structure, and legislative histories of the statutes, a court that allows victims of ADA retaliation and coercion to recover legal damages is applying the law as Congress enacted it and not encroaching on congressional legislative power.²²

The Seventh Circuit's decision in Kramer was the beginning of an unfortunate trend. Courts are now denying victims of ADA retaliation the full remedies Congress intended and thereby also denying them their statutory right to jury trials.²³ Part IV approaches this issue from a public-policy perspective.²⁴ It explains why Kramer was an unfortunate decision with unfortunate consequences.²⁵ It also concludes that if the judiciary continues to misinterpret the legislation, Congress must clarify its intent to ensure that courts are able to compensate victims of ADA retaliation for their employers' discriminatory conduct and thereby avoid rendering meaningless the ADA's promise to attempt to eliminate discrimination on the basis of disability.²⁶

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II ADA Retaliation and Coercion in Employment and the Seventh Circuit's Interpretation

When President George H.W. Bush signed the ADA into law in 1990, he observed that it would "signal the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life."²⁷ Congress indicated that its purpose in enacting the ADA was to "eliminate discrimination against individuals with disabilities" and "provide clear, strong, consistent, enforceable standards" ²⁸ to address discrimination against the estimated forty-three million Americans with disabilities.²⁹ This broad legislation protects individuals with disabilities from discrimination in public accommodations,³⁰ such as hotels, restaurants, theaters, and grocery stores;³¹ transportation facilities that are public;³² and employment.³³ The ADA prohibits employers from discriminating against employees with disabilities in every aspect of employment, including recruiting, hiring, job assignments, compensation, and training.³⁴

The language of the ADA's prohibition on employment discrimination is similar to the language in Title VII of the Civil Rights Act of 1964 that prohibits discrimination on the basis of race, national origin, sex, or religion.³⁵ The ADA, like Title VII and other antidiscrimination legislation,³⁶Page 1500 also prohibits employers from retaliating against or coercing individuals who oppose discrimination.³⁷ To further the ADA's antidiscrimination goalPage 1501 effectively, the statute relies on private individuals to enforce its provisions.³⁸ To deter employers from punishing those individuals who attempt to enforce their ADA right to be free from disability discrimination in the workplace, the ADA seeks to encourage individuals to speak out against their unlawfully discriminating employers.³⁹ When Congress enacted the ADA in 1990, it linked the remedies available for discrimination on the basis of disability in employment to the remedies available under Title VII of the Civil Rights Act of 1964.⁴⁰ In 1990, Title VII did not allow victims to recover legal damages, such as compensatory and punitive damages.⁴¹ Only equitable remedies were allowed.⁴² Because of this, victims also did not havePage 1502 a right to present their case before a jury.⁴³ However, one year later, Congress enacted ß 1981a(a)(2) of the Civil Rights Act of 1991, which amended Title VII and the ADA; thereafter, plaintiffs alleging discrimination were eligible for punitive and compensatory damages and jury trials.⁴⁴ This Part concludes, contrary to decisions by the Seventh Circuit and other courts,⁴⁵ that Congress intended for victims of ADA retaliation and coercion in employment to recover legal damages when it expanded the available remedies in 1991.⁴⁶ This Part will first describe the statutory scheme before explaining how the Seventh Circuit justified its decision to prevent a victim of ADA retaliation in an employment context from recovering legal damages.

A Statutory Provisions

The ADA has three main titles: Title I prohibits discrimination in employment,⁴⁷ Title II requires transportation facilities that are public to be accessible to individuals with disabilities,⁴⁸ and Title III prohibits discrimination in the context of public accommodations and some private services.⁴⁹ Each of these Titles is enforced differently, and each contains a separate enforcement provision.⁵⁰ The ADA's prohibition on retaliation and coercion applies to all three titles and, thus, protects individuals from retaliation for attempting to enforce any of the rights established by the ADA.⁵¹ The retaliation provision is separate from the Act's main provisions;Page 1503 it is located in Title V Miscellaneous Provisions⁵² which includes provisions relating to the Act as a whole, such as sovereign immunity,⁵³ regulations and technical assistance,⁵⁴ and the effect of the ADA on federal wilderness areas.⁵⁵

The retaliation-and-coercion provision does not itself specify remedies; instead, it incorporates the specific enforcement provisions of Titles I, II, and III.⁵⁶ For example, a victim of retaliation and coercion in the context of public services would be eligible for remedies as provided in the enforcement provision of Title II, which prohibits discrimination in public services.⁵⁷ Likewise, victims of retaliation and coercion in employment are eligible to recover the remedies available under Title I's enforcement provision.⁵⁸ Title I's enforcement provision does not enumerate available remedies but, instead, incorporates the remedy provisions of the Civil Rights Act,⁵⁹ which Congress amended in 1991 to allow victims of discrimination to recover legal...