Two January 2004 decisions, one by the Federal District Court for the District of Colorado and one by the United States Court of Appeals for the Seventh Circuit, significantly cut back the rights and remedies ADA retaliation claim plaintiffs felt they enjoyed. In these cases, the courts whittled down the claims brought by the plaintiffs to a single claim: retaliation under Section 12203 of the Americans with Disabilities Act. Plaintiffs have previously sought to recover compensatory and punitive damages in connection with the alleged retaliation and have also claimed the right to a trial by jury.
The facts of these two cases are unremarkable, which ensures that the courts' holdings will have general applicability. In the Colorado case, for example, the plaintiff contended that he suffered from lung cancer and had undergone extensive surgery. The potential employer knew of plaintiff's condition and, in fact, had been involved in a previous ADA suit with the plaintiff, which was settled. Plaintiff contended that he did not apply for a position with the employer because he would have been denied employment. Plaintiff contended the denial of such employment was inevitable because the employer had allegedly stated, "He will never work here." Plaintiff's ADA retaliation claim followed.
The first issue before the courts was whether Section 12203 permits the recovery of compensatory and punitive damages. The courts held that, even though compensatory and punitive damages are available as a remedy for disability discrimination, such damages are not available for a retaliation claim under the ADA. The Civil Rights Act of 1991 (CRA) expands the remedies available for a number of discrimination claims to include compensatory and punitive damages. The CRA, however, makes no reference to ADA retaliation claims. Counsel for the plaintiffs asserted that the legislative history supports the recovery of such damages. The plaintiffs argued that the court should look to the legislative history of the CRA to determine whether Congress truly intended to permit the recovery of compensatory and punitive damages for ADA retaliation claims. The argument fell on deaf ears. The courts held that the language of the statute was clear and unambiguous and therefore, there was no need to review the legislative history.
Having concluded that compensatory and punitive damages are not available to a plaintiff with an ADA retaliation claim, the courts next addressed whether a jury trial was permissible. The remedies available to an ADA retaliation plaintiff are limited to an injunction, reinstatement, back pay, or other equitable relief. Where the only available remedies are equitable, there is no right to a trial by jury. Accordingly, the ADA retaliation plaintiffs' jury demands were stricken.
Practical Significance
These recent court decisions addressing the claims of ADA retaliation plaintiffs are significant. The denial of a right to recover compensatory and punitive damages, coupled with the refusal to allow a jury to hear such claims, should result in an overall decrease in the frequency of ADA retaliation claims. Additionally, employers faced with ADA retaliation claims may seek to strike the compensatory and punitive damages component and ask that such claims be tried to the court, even though other claims in the case may be tried before a jury.
Kris J. Kostolansky is a partner at RJ&L's Denver office where he specializes in the representation of businesses in employment and commercial disputes. He has extensive experience in the areas of employment law, commercial contracts, and business torts. Mr. Kostolansky has litigated numerous cases involving wrongful discharge, discrimination, trade secrets, and noncompete agreements. He has also counseled public and private entities on accessibility issues under the Americans with Disabilities Act.
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