The U.S. Supreme Court’s decision Thursday that federal anti-bias laws don’t allow plaintiffs to recover damages for emotional distress struck a blow to private enforcement of those laws by leaving litigants with no effective remedy, attorneys who practice in the area say.

And the decision isn’t just about people with disabilities, Mary Crossley, who teaches health law policy at the University of Pittsburgh Law School in Pittsburgh, told Bloomberg Law.

Because the case involves “spending clause legislation,” a similar analysis would apply to other federal anti-bias laws passed by Congress with the understanding that the federal funding is in exchange for a promise not to discriminate, such as Title VI, Title IX, and Section 1557 of the Affordable Care Act, Crossley said.

Title IX prohibits discrimination in educational programs, and Title VI prohibits discrimination on the basis of race, color, or national origin. Section 1557 protects against discrimination by health-care providers or in health-care programs.

The decision, moreover, is just “the latest in a long line of Roberts court rulings that guts remedies for violations of federal civil rights laws and makes it harder to hold corporations and other actors accountable,” Smita Ghosh, of the Constitutional Accountability Center in Washington said.

CAC filed a friend of the court brief supporting plaintiff Jane Cummings, a deaf woman whose request for an American Sign Language interpreter was denied by physical therapy provider Premier Rehab Kelller PLLC.

An attorney who argued in the Supreme Court for Premier declined to comment. Its local Fort Worth, Texas, counsel didn’t respond to Bloomberg Law’s request for comment.

Only Damages

“Emotional harm is the most pervasive and often the only form of damages victims of intentional discrimination experience,” Andrew Rozynski told Bloomberg Law. Rozynski, who co-chairs Eisenberg & Baum LLP’s Law Center for Deaf and Hard of Hearing in New York, represented Cummings.

Emotional distress damages are intended to compensate people for intangible injuries, such as humiliation or embarrassment, that don’t have a readily assignable economic value.

Essentially, the Supreme Court’s “decision means is that, in the absence of state laws or local ordinances, persons with disabilities will not have an effective remedy if they are discriminated against based on a disability, unless it is either an ongoing issue, or cannot be rendered moot by changes in practices,” Matthew Dietz, Litigation Director of Disability Independence Group Inc. in Miami, said.

Dietz was the winning attorney in a 2007 case before the U.S. Court of Appeals for the Eleventh Circuit holding that emotional distress damages are available for violations of Section 504 of the Rehabilitation Act.

That lack of remedy also extends to people seeking redress for sex or race discrimination under Title VI and Title IX, Crossley said.

The decision “eviscerates all claims for emotional damages in civil rights claims stemming from” those laws, even in the most egregious cases of discrimination, Dietz said.

The possibility for government action to enforce the laws still exists, Crossley said. But it generally doesn’t have the resources to take on all cases of discrimination, she said. And that’s why the government leans on individuals to act as private attorneys general to enforce the civil rights laws, she said.

This decision will chill that enforcement, as people will be reluctant to bring cases in which they will likely be limited to recovering nominal damages, Crossley said. And few attorneys will be willing to represent those people, she said.

Future Action Possible?

A Congressional fix may be possible, Crossley and Rozynski said. The civil rights laws could be amended to specifically provide for emotional distress damages in private cases.

That would defeat Justice Brett M. Kavanaugh’s reasoning in a concurring opinion that the result was dictated by the fact that the laws don’t specify the availability of emotional distress damages. Justice Neil M. Gorsuch joined Kavanaugh’s opinion.

Kavanaugh may have been laying the groundwork for tightening enforcement of civil rights laws by emphasizing the statutory language, Crossley said.

But Kavanaugh’s reasoning may not be consistent with Congress’ intent, Crossley said. As Justice Stephen G. Breyer said in a dissenting opinion, lawmakers understood that emotional harm might be the only injury suffered by victims of discrimination, she said.

People suffering from discrimination still have some recourse. Dietz, for example, suggests suing under state or local laws that provide more protection than federal laws. But he acknowledged that such laws may come with more procedural and administrative requirements.

People also may be able to sue in tort in some cases, Crossley said. Emotional distress damages are available in such actions, she said.