Generally, employers cannot discriminate against employees because of the employee’s disability. There are several laws that protect against disability-based discrimination, including: the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“Rehab Act”), and in Arizona, the Arizona Civil Rights Act (“ACRA”). But the most known act, the ADA, does not apply to some groups, like federal employees. Rather, the prohibition against disability discrimination applies to federal employees under the Rehab Act. The Rehab Act also prohibits disability-based discrimination for any employers with federal contracts or who may otherwise receive federal funding and/or assistance. This means that the Rehab Act also applies almost unequivocally to universities, colleges, and other educational institutions that receive federal funding. The same is true for healthcare companies that receive payments from Medicare or other federally-funded healthcare grants. These are just some examples of many.

When an employee or student sues for disability-based discrimination under the ADA or the Rehab Act, the employee or student (now plaintiff) may request an award of:

• Monetary relief (money to compensate someone for their injury or losses); and
• Non-monetary relief (such as reinstatement, providing a reasonable accommodation, among other things).

The type of monetary relief will differ depending on the nature of the claim. For example, a student may request lost tuition, while an employee may request lost wages. But where these two laws differ is with respect to emotional distress damages. Generally, emotional distress damages attempt to reimburse a victim of discrimination for the psychological toll of the discrimination.

In 2022, the Supreme Court in the United States (“SCOTUS”) held that emotional distress damages are no longer available under the Rehab Act in a case called Cummings v. Premier Rehab Keller. SCOTUS found that, absent clear language in the statutes providing for emotional distress damages, the damages available to plaintiffs in Rehab Act claims must be limited to those available under contract law. Emotional distress damages, the majority concluded, are generally not compensable for breach of a contract, and thus are not available as remedies for a Rehab Act claim.

To be clear, emotional distress damages are still recoverable under the ADA. But the ADA does not apply to many entities, such as:

• Those with less than 15 employees;
• Federal agencies;
• Airlines and airplanes; and, without limitation,
• Private clubs.

This means that many disabled folks may be significantly limited in their remedies if any of the above-referenced entities discriminate against them on the basis of disability.

A student or employee who believes their rights have been violated should consult with an experienced employment or education attorney. An attorney will help the student/employee understand their rights and the steps they may take to protect them.