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In April 2022, the Supreme Court of the United States decided in Cummings v. Premier Rehab Keller, P.L.L.C. that emotional distress damages were not recoverable in private rights of action brought under anti-discrimination statutes. Pursuant to their authority under the Spending Clause, Congress has enacted four distinct anti-discrimination statutes including Title VII, the Rehabilitation Act, the Affordable Care Act, and Title IX. In Cummings, a deaf and blind plaintiff sought emotional distress damages under the Rehabilitation Act and Affordable Care Act after she was denied an interpreter at a physical therapy appointment. The Court developed a test to determine whether emotional distress damages were appropriate under the anti-discrimination statutes: would a prospective funding recipient, at the time it decided to accept federal funding, have been aware that it would face this specific type of liability? The Court answered this question in the negative, reasoning that emotional distress damages were not a typical contract remedy and recipients would not have been on clear notice that they might face such liability. While Cummings explicitly dealt with private rights of action under the Rehabilitation Act and Affordable Care Act, the legal community is left wondering how this decision affects suits under Title VII and Title IX. The holding of Cummings should not apply to private rights of action under Title IX. Educational institutions, specifically universities and colleges, are on notice that they could face emotional distress liability resulting from sexual harassment occurring on their campuses.


Allison Mauk: J.D., University of Dayton School of Law Class of 2023.

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