Statutory leapfrog: compensatory and punitive damages under the retaliatory provision of the ADA.

• Author: Doellman, David A.

1. INTRODUCTION

   Equality has traditionally been an important issue in many different aspects of American life, and Congress created various laws to ensure that this equality is preserved. One of these laws is the Americans with Disabilities Act of 1990 (ADA). The ADA was created to ensure that those with disabilities would be treated equally in aspects of both public services and accommodations, as well as in the employment sector. (1) Among its many provisions, the ADA serves to protect employees from being discharged from their positions in "retaliation" for opposing practices by the employer that would have also been unlawful under the Act. While the U.S. Circuit Courts have agreed on the application of this "retaliatory provision," they have not agreed on what specific remedies are available to plaintiffs bringing such claims. Congress' statutory construction with regard to remedies has proved to confound courts across the country. As a result, a circuit split has emerged on the availability of compensatory and punitive damages when employers violate the retaliatory provisions of the ADA. In effect, this split has placed employees on unequal footing based on the circuit they currently reside in and the statutory interpretation it utilizes.

   Part II of this article will outline the basic provisions of the Americans with Disabilities Act, focusing on claims of employment discrimination and the retaliation provision. Part III will briefly outline the remedy structure of the retaliation provision, noting which statutory sections must be considered when deciding what remedies are appropriate. Then, Part IV will discuss the relevant case law and recent developments on the two different positions taken by various circuit courts with respect to the availability of compensatory and punitive damages as a result of a violation of the retaliatory provision. Finally, Part V will evaluate these two major approaches and lay out the reasons why the U.S. Supreme Court and Congress need to ultimately intervene and resolve the current circuit court split. Ultimately, this resolution will avoid the injustice that results when one employee is able to recover more on his retaliation claim than another based simply on the circuit in which he resides.

2. LEGAL BACKGROUND OF THE AMERICANS WITH DISABILITIES ACT

   1. Purpose and Overview

      In 1990, the Americans with Disabilities Act (ADA) was passed by Congress and signed into law with the primary purpose of "provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (2) At the time of the Act's passage, Congress determined that approximately forty-three million Americans were living with some sort of physical or mental disability. (3) In addition, Congress found that, because of the discrimination and prejudice that denied these individuals the opportunity to compete with others on an equal basis, the United States as a country was forced to bear a debt of billions of dollars annually in support payments due to dependency and non-productivity. (4) Through the ADA, therefore, Congress sought to remedy these injustices by assuring "equal opportunity" of employment to those with disabilities (5) and the ability "to pursue those opportunities for which our free society is justifiably famous." (6) Thus, Congress was interested in removing the then-existing barriers that kept people with all types of impairments from fully using their skills. (7)

      Despite Congressional intent to help those with impairments and disabilities, some have argued that the ADA's analytical "framework makes it ... difficult [for many plaintiffs] to establish a successful discrimination claim based on an alleged disability." (8) In order to be covered by the ADA, an individual first must demonstrate that he is "disabled." This means that he must show that he has "a physical or mental impairment that substantially limits one or more of [his] major life activities." (9) However, plaintiffs seeking to bring claims under the ADA tend to face numerous problems with the definition of "major life activities." Even though certain activities might be important to an individual plaintiff, they still may not qualify under the ADA if these activities are not significant within the meaning of the Act. (10) While a few "major life activities" have been denoted as significant by the Equal Employment Opportunity Commission (EEOC), (11) courts have largely held the responsibility of determining whether an action or activity qualifies as a "major life activity" sufficient to support a discrimination claim. (12)

      Only after a plaintiff is determined to be "disabled" are protections found in the various provisions found in the Act examined. The ADA is generally divided into three subchapters known as "Titles" and one relevant (for purposes of this paper) fourth subchapter known as "Title V" which is named "Miscellaneous Provisions." (13) Title I of the ADA generally prohibits discrimination in the terms and conditions of employment; (14) Title II of the Act addresses discrimination against the disabled with regard to access to public services; (15) and Title III prevents discrimination in public accommodations. (16)

      With regard to Title I, which is the most relevant of the main three Titles to the focus of this analysis, a disabled individual will only be protected in the employment sector by the ADA if they are otherwise "qualified" for the position involved in the dispute. (17) A "'qualified individual with a disability'" is defined by the Act as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (18) Thus, determining whether someone is qualified involves both identifying the essential functions of the job and assessing whether the individual can perform these functions, either with or without special means of accommodation. (19)

      Whether certain job functions are "essential" is a determination made by the court on a case-by-case basis. (20) Courts do have a little guidance, however, as the ADA instructs that some consideration be given to the employer's judgment on the issue. (21) In addition, regulations promulgated by the EEOC provide a general definition of essential functions, stating that they are "the fundamental job duties of the employment position the individual with a disability holds or desires.... [This] does not include the marginal functions of the position." (22) Furthermore, the EEOC provides examples of other evidence that should be taken into account when determining whether a specific function of the job is essential under the ADA. (23)

      Once a job's essential functions are identified, the court must then decide whether the disabled individual can perform those functions considering any reasonable accommodations that could be provided by the employer. (24) Generally, the ADA classifies something as a "reasonable accommodation" if a modification or adjustment to the job requirements, the work environment, or facilities would enable a qualified individual with a disability to work reasonably the same as one that is not disabled. (25) Thus, if a disabled employee can show that he could perform the essential functions of the job if an accommodation was made, the ADA mandates that the employer provide such assistance. (26)

   2. The Retaliation Provision

      The ADA not only assists individuals in accessing employment opportunities, public accommodations and services, but it also protects the individuals from discrimination based on their disability after gaining such employment. Title V of the "Miscellaneous Provisions" subchapter contains an anti-retaliation clause in Section 12203. This provision provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." (27) This section is commonly utilized, for example, in a situation when an employee opposes an employer's action based on potential discrimination under the ADA and is subsequently terminated from his or her job; (28) or similarly, when an employee files a complaint with the EEOC and is thereafter terminated. (29)

      In either situation, however, a plaintiff must show three specific elements to establish a prima facie case for retaliatory discharge: (1) that the plaintiff "engaged in protected opposition to ADA discrimination or participated in an ADA proceeding;" (2) that the plaintiff "suffered an adverse employment action [after or] contemporaneously with [the] opposition;" and (3) that "there is a causal connection between" the two events. (30) If the plaintiff can do this, then the burden shifts to the employer to articulate legitimate, non-retaliatory reasons for the adverse action. (31) However, the plaintiff can respond to the employer's arguments by showing that the proffered reasons are pretextual, meaning that "discriminatory reason[s] more likely [than not] motivated the employer or that the employer's [reasons are] unworthy of credence." (32)

3. BASIC REMEDY STRUCTURE UNDER THE RETALIATION PROVISION

   If an employee is successful on his claim of retaliation, the ADA details the remedies available to the employee. While the retaliatory provision applies to the three primary chapters, however, it does not contain its own remedial provision. (33) Instead, Section 12203 incorporates the separate remedies provision of each primary subchapter for retaliation claims with respect to that subchapter. (34) Thus, in cases that involve retaliation by an employer against an employee, the remedial provisions of subchapter I, specifically Section 12117, control because subchapter I deals specifically with...