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Compensatory and Punitive Damages are Unavailable in ADA Retaliation Claim

According to EEOC statistics, retaliation claims steadily have been rising over the last ten years. Due to this growing trend, HR professionals and employment practioners should be cognizant of the differences in remedies available for various types of retaliation claims.

Recently, the Seventh Circuit concluded that compensatory and punitive damages are unavailable to a party bringing a retaliation claim under the Americans with Disabilities Act ("ADA"). Although the issue is one of first impression for Federal circuit courts, the district courts that have addressed the question are split. [Kramer v. Banc of Am. Sec., 7th Cir. No. 02-3662, 1/20/04].

In the case, an employee with multiple sclerosis was terminated after she filed a charge of disability discrimination with the EEOC. In her federal suit in which she alleged disability discrimination and retaliation under the ADA, the employee sought front pay, back pay, compensatory and punitive damages, reinstatement, and attorneys' fees and costs. She also demanded a jury trial. On the defendant's motion for summary judgment, the court granted judgment against the employer on all but the ADA retaliation claim. The employer then moved to exclude compensatory and punitive damages and to strike the plaintiff's jury trial demand, arguing that, on an ADA retaliation claim, such damages are not recoverable and there is no statutory right to a jury trial. The court agreed. Noting the ADA's statutory scheme, including the remedies provisions, the court found that the remedies available for ADA retaliation claims against an employer are limited to injunctive relief such as reinstatement or hiring of employees, with or without back pay, or other relief that the court deems appropriate. Therefore, the compensatory and punitive damages, and thus the right to a jury trial, are unavailable in an ADA retaliation claim.

On the other hand, compensatory and punitive damages and the right to a jury trial are expressly provided for under Title VII. Therefore, if the underlying discrimination is based on race, color, sex, religion or national origin under Title VII, then the claimant alleging retaliation still should be permitted to seek compensatory and punitive damages and request a jury trial. Initially, the Civil Rights Act of 1964 did not provide for such damages, but, the 1991 Amendments made these damages available in retaliation claims.

As a result of the Kramer decision, employers should move to dismiss claims for compensatory and punitive damages and to strike a demand for a jury trial in retaliation claims under the ADA.