By: Urooba Abid, Paralegal, ACLU Disability Rights Program

When Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama in 1955, our laws did not provide any recourse against the discrimination she faced. In the decades that followed, organizers and civil rights groups won key battles to expand our laws to protect against discrimination for Black people, women, and people with disabilities. Until recently, thanks to the groundwork laid by people like Parks, people who faced discrimination could seek damages for the emotional distress they endured. But the U.S. Supreme Court blocked that avenue for relief in Cummings v. Premier Rehab Keller, P.L.L.C, turning its back on our communities and effectively making such discrimination legal.

In its decision, the court guts key civil rights remedies by revoking the right of victims of race, sex, and disability discrimination to recover emotional distress damages — essentially blocking victims from bringing lawsuits at all.

Until recently, people who faced discrimination could seek damages for the emotional distress they endured. But the U.S. Supreme Court blocked that avenue for relief.

Though often excluded from discussions of the court’s radical shift to the right, the egregious impact of this decision cannot be understated. After Cummings, discrimination cases that cannot show economic harm will never see the light of day. So, providers who turn away people with disabilities because they cannot be bothered to provide accommodations, or doctors who are openly racist to patients, would face no consequence for their obvious discrimination.

In its amicus brief the ACLU, the NAACP Legal Defense Fund, and the National Women’s Law Center highlighted a number of discrimination cases that would be affected by this decision. In each of these cases, emotional distress damages are the primary tool used to seek justice for victims. In Franklin v. Gwinnett County Public Schools, for example, in which a young girl was sexually harassed by her teacher, the injuries required damages only for emotional, not economic, harm. Similarly, in Zeno v. Pine Plains Central School District, in which a Black student suffered racial harassment and assault for more than three years, damages that addressed the psychological harm on the student were the only way to hold the school accountable.

After Cummings, cases like these will be nearly impossible to bring. Here’s what you need to know about this shameful decision.

What happened in this case?

Jane Cummings, who is deaf and legally blind, was denied services from a physical therapist’s office — Premier Rehab Keller — because of her disability. The office refused to provide Cummings with an American Sign Language interpreter at her sessions, although they were required to under federal anti-discrimination laws.

Cummings was forced to find a different physical therapist, but filed a lawsuit against Premier Rehab for violating the anti-discrimination rules in the Rehabilitation Act of 1973 and the Affordable Care Act (ACA).

In her case, as is the case for many Americans who experience discrimination due to their identity, the lawsuit sought damages for emotional distress. Emotional distress damages are often critical to discrimination cases, compensating victims for lasting harms like anxiety, depression, and post-traumatic stress disorder.

What did the court say?

The issue, in this case, was not whether Cummings was discriminated against, but rather what to do in response to the discrimination she faced. The Supreme Court’s answer? Nothing could be done.

For the first time, the court held that emotional distress damages were not recoverable in a private action to enforce anti-discrimination laws. In its argument, the court applied contract law to hold that damages cannot include compensation for emotional suffering since emotional distress damages are not traditionally available in suits of breach of contract.

Despite studies routinely showing that discrimination can cause significant emotional damage, potentially affecting a person’s stress levels, self-esteem, blood pressure, and overall mental health, the court claimed these harms do not warrant a remedy.

What does this mean for victims of discrimination?

The impact of this decision is far reaching. Practically, this decision means that while emotional injury is often the primary, and at times the only, harm caused by discrimination, victims will not be able seek justice.Without emotional distress remedies, many discrimination cases in progress will be thrown out, and future cases will not be taken up by lawyers at all.

While the facts of this case concerned disability discrimination under the Rehabilitation Act and the ACA, its ruling also applies to Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination) and Title IX of the Education Amendments of 1972 (prohibiting sex discrimination). This means the decision will affect kids in schools, people who experience sexual harassment and abuse, and many other victims of race and sex discrimination.

Cummings not only prevents these individuals from seeking justice, but also leaves them at greater risk under the weakened anti-discrimination laws. In the past, the strength of these laws has relied on the deterrent effect of lawsuits brought by private actors. Now, many victims will be unable to bring a case, making it all the more difficult to hold violators of these laws accountable.

With this decision, key wins fought for by civil rights activists like Rosa Parks are stripped away. Rosa Parks suffered no economic harm from sitting in the back of the bus. She lost no job. The bus still took her where she needed to go. But the injury she suffered — the indignity and stigma of being segregated and relegated to the back — was real. Now, the court has effectively told Rosa Parks, “So what?”

This blog oringinally appeared as an op-ed in The Detroit Free Press (07/12/22)

Every year, thousands of Michiganders are locked up without being convicted of any crime, often because they can’t afford to pay even a few hundred dollars in bail.  

People such as Katrina Gardner.  

Arrested for disorderly conduct after a heated discussion with a teacher she believed had failed to protect one of her three young children from a school bully, Gardner’s bail was set at $630. Unable to go to work or care for her kids while being locked up for nearly a week, she was finally forced to use money set aside for rent to buy her way out of jail. As a result, her family lost their housing.  

For months afterwards, Gardner and her children had to pack into a relative’s house as she tried to get their fragile finances back in order. It was, she says, “a horrible experience” that caused long-term harm to her relationship with her family.  

Her story is disturbingly common. About half of the roughly 16,000 people locked in our state’s jails have been convicted of no crime, according to a 2020 report from the bipartisan Michigan Joint Task Force on Jail and Pretrial Incarceration. The report shows that Black people are especially hard hit. In Wayne County, Black people represent 39% of the population but 70% of those jailed on any given day. 

I met Katrina Gardner in April 2019, when the ACLU and our partners at the law firm Covington & Burling LLP, The Bail Project, and the NAACP Legal Defense Fund filed a federal class action lawsuit on behalf of her and six other Black Detroiters sitting in jail because they couldn’t afford to pay the cash bail imposed by magistrates at Detroit’s 36th District Court, one of the busiest courts in the country. We chose to sue the 36th District Court because reform there would have the greatest impact. But a similar lawsuit could have been brought against most of the state’s district courts. I can say that with some certainty because, in 2018, ACLU staff and volunteers began observing bail hearings across Michigan.  

What we witnessed was alarming. In almost every courtroom we entered, this state’s two-tiered criminal legal system was readily apparent, with the harms of unnecessary pre-trial incarceration falling hardest on poor communities and communities of color. People of means could walk free after posting cash bail while those existing on low incomes were far too often forced to sit behind bars until their trial, causing untold damage to them, their families and their communities.  

Reformers elsewhere have long shown that cash bail is largely unnecessary. Washington, D.C., for example, took on the issue 30 years ago. The result: More than 90% of defendants are normally released pretrial without having to pay cash bail. Importantly, the vast majority of those people – close to 90% – show up for their court appearances. As one D.C. Superior Court Judge noted, “There is no evidence you need money to get people back to court. It's irrational, ineffective, unsafe and profoundly unfair.” Similarly, in dozens of places nationwide, The Bail Project is demonstrating that people reliably come back to court without the financial incentive of bail. 

Given that reality, the 36th District Court’s leadership showed interest in resolving the lawsuit in a spirit of collaboration rather than fighting us tooth and nail. Now, after three years of working with the Court’s judges and their lawyers, we’ve achieved a ground-breaking agreement, creating a unique partnership between civil rights advocates and the court.  Throughout the process, Ms. Gardner and our clients provided essential guidance from their lived experience that has helped guide this partnership. 

Judges will still have the discretion to impose cash bail on a case-by-case basis, but they will only do so when they’ve determined, based on specific evidence, that the individual before them actually presents a danger to the public or a flight risk.  Critically, judges will now ask people how much they can afford before bail is imposed. Our partnership’s shared goal is that people like Gardner will no longer have to choose between freedom and keeping a roof overhead.  

By embracing these commonsense reforms, the 36th District Court has positioned itself to be a leader in addressing the longstanding misuses of cash bail that have plagued the criminal legal system statewide and nationwide for decades.   

This comes at a critical time for Michigan. Although Detroit’s courts are changing, the abuses we observed statewide continue. A bipartisan group of legislators in Lansing have proposed a package of bills that would reform the system, but those bills have not even advanced out of committee.   

The Michigan Legislature needs to act to make other court systems follow the 36th District Court’s example by adopting more just and safe pretrial legal system.  If the Legislature does not act, other court systems statewide may soon find themselves on the receiving end of a lawsuit like the one we are resolving today.  

We’re not going to rest until people everywhere in Michigan are free of any worry they might find themselves locked in a jail cell for days, weeks or even months or years simply because they lack the money to make bail.   

To quote Gardner: “This agreement is going to make a total difference.”