Chapter 5 - § 5.10 • WHAT REMEDIES ARE AVAILABLE?

• Jurisdiction: Colorado

§ 5.10 • WHAT REMEDIES ARE AVAILABLE?

Title I of the ADA, 42 U.S.C. § 12117(a), incorporates by reference the remedies provision of Title VII and may "include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorney fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation." EEOC Technical Assistance Manual at § 10.2. Where there is sufficient evidence for a jury to decide whether an employer intentionally and illegally discriminated on the basis of disability, and there is evidence that the employer knew the requirements of the ADA, the jury may find punitive damages. See EEOC v. Heartway Corp., 466 F.3d 1156 (10th Cir. 2006). The plaintiff must show that his employer acted with "malice or with reckless indifference to the plaintiff's federally protected rights." Id. "To satisfy this standard, the employer must engage in prohibited conduct with knowledge that it may be acting in violation of federal law, not mere awareness that it is engaging in discrimination." Id.

The Rehabilitation Act does not have an explicit remedies provision, but has been held by the Tenth Circuit to entitle a plaintiff to compensatory damages where a defendant's discrimination was intentional, which "can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights." Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228-1229 (10th Cir. 2009). The Supreme Court has held, however, that punitive damages are not recoverable under the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189-190 (2002) ("Because punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it...