Ninth Circuit Rejects EEOC Guidance: No Compensatory/Punitive Damages for
ADA Retaliation Claims
February 2010
The U.S. Court of Appeals for the Ninth Circuit
recently interpreted the retaliation provision of the Americans with Disabilities
Act (ADA) to allow for equitable relief only, such as reinstatement and back
pay. Based on its reading of the plain language of the statute, the Ninth Circuit
limited greatly the scope of damages available under the ADA for a retaliation
claim.
by Paul
J. Siegel, Esq. and Ana C. Shields, Esq.
Jackson Lewis
LLP
As the Ninth Circuit explained, because Congress did not specifically provide
for compensatory and punitive damage relief in ADA retaliation cases, such damages
are not available. See
Alvarado v. Cajun Operating Co. d/b/a AFC Enters. Inc.,
No. 08–15549 (9th Cir. Dec. 11, 2009).
Facts of the Case
Alvarado alleged that his former employer, Cajun Operating Co. d/b/a AFC
Enters. Inc. ("AFC"), retaliated against him for complaining that he was discriminated
against on the basis of his purported disability. Subsequently, Alvarado filed
a lawsuit alleging retaliation and seeking, among other things, punitive and
compensatory damages under the ADA. Prior to trial, the lower court barred Alvarado
from seeking compensatory and punitive damages under his ADA retaliation claim
on the ground that only equitable relief was available.
The Ninth Circuit agreed with the lower court. In doing so, the Ninth Circuit
surprisingly rejected the Equal Employment Opportunity Commission's (EEOC's)
position, as set forth in its Compliance Manual, that the same damages should
be available for ADA retaliation claims as are available for ADA discrimination
claims. While acknowledging that the EEOC's Compliance Manual generally is entitled
to deference, the Ninth Circuit explained its refusal to grant deference as
follows:
Without mentioning § 1981a, the EEOC Manual provides that "[a] 1977 amendment
to the Fair Labor Standards Act authorizes both legal and equitable relief
for retaliation claims under that Act. Compensatory
and punitive damages therefore are available for retaliation claims brought
under the EPA and the ADEA, as well as under Title VII and
the ADA."
See EEOC Compliance Manual, 5/20/98, Section 8–III B. and nn. 56–57,
available at
http://www.eeoc.gov./policy/docs/retal.html, last visited 12/3/09. However,
the Manual references only 29 U.S.C. § 216, Moskowitz
v. Trustees of Purdue Univ., 5 F.3d 279 (7th Cir. 1993), and
Soto v. Adams Elevator Equip. Co., 941 F.2d
543 (7th Cir. 1991). Section 216 and the corresponding cases involve the
Fair Labor Standards Act, not Title VII or the ADA. See 29 U.S.C. § 216(b);
Moskowitz, 5 F.3d at 283;
Soto, 941 F.2d at 551.
Because the EEOC Manual did not contain a reasoned
analysis of the issue we address, there is no EEOC position to which we
defer. See
E.E.O.C. v. Puget Sound Log Scaling & Grading Bureau,
752 F.2d 1389, 1391 (9th Cir. 1985) (recognizing that no deference is owed
if the EEOC does not provide "a reasoned and supportable interpretation
of the applicable statute.").
Id. at 10, n.7 (emphasis added).
Accordingly, the Ninth Circuit, which covers Alaska, Arizona, California,
Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, takes the position that
compensatory and punitive damages are not available in ADA retaliation cases.
The Ninth Circuit's position is consistent with that of District Courts in the
Fourth and Seventh Circuits. District Courts in the Second Circuit (which include
Connecticut, New York, and Vermont) have held that such damages are available.
Conclusion
Regardless of the circuit in which the claim is brought, employers and their
insurers should be reminded that equitable relief, such as reinstatement and
back pay, may be costly in and of itself in circumstances where a plaintiff's
earnings were high. This is particularly true in this economy given the likelihood
that a plaintiff will be unable to successfully find comparable subsequent employment.
Back pay may be especially costly given the recent enactment of the Lilly Ledbetter
Fair Pay Act of 2009.1
Workplace claims continue unabated, and, in fact, the EEOC recently announced
that 93,277 workplace discrimination charges were filed nationwide during fiscal
year 2009, the second highest charge filings in a year in history.2
For these reasons, comprehensive and accessible antidiscrimination, antiharassment,
and antiretaliation policies, together with preventive training, are as essential
as ever.
Ana
C. Shields is a senior associate in the Long Island office of Jackson
Lewis. Since joining Jackson Lewis, Ms. Shields has practiced exclusively in
the area of employment litigation and has been involved in proceedings before
federal and state courts, the American Arbitration Association, and administrative
agencies. She has advised employers on compliance with various state and federal
laws affecting the workplace. Ms. Shields can be reached at
or
(631) 247–4657.
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