Nos. 08-6200 & 09-5722
____________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
____________________________________________
DOUGLAS BAKER,
Plaintiff/Appellee-Cross-Appellant,
v.
WINDSOR REPUBLIC DOORS, INC.,
Defendant/Appellant-Cross-Appellee.
____________________________________________
On Appeal from the United States District Court
for the Western District of Tennessee
No. 06-01137
____________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AND THE UNITED STATES AS AMICI CURIAE IN
SUPPORT OF PLAINTIFF/APPELLEE-CROSS-APPELLANT
____________________________________________
THOMAS E. PEREZ JAMES L. LEE
Assistant Attorney General Deputy General Counsel
MARK L. GROSS VINCENT J. BLACKWOOD
LISA WILSON EDWARDS Acting Associate General Counsel
Attorneys
CAROLYN L. WHEELER
Assistant General Counsel
Department of Justice
Civil Rights Division DONNA J. BRUSOSKI
Appellate Section Attorney
Ben Franklin Station, RFK 3748
P.O. Box 14403 U.S. EQUAL EMPLOYMENT
Washington, D.C. 20044-4403 OPPORTUNITY COMMISSION
202-514-5695 Office of General Counsel
131 M St., N.E.
Washington, D.C. 20507
(202) 663-7049
donna.brususki@eeoc.gov
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 2
A. Statement of Facts and Course of Proceedings. . . . . . . . 2
B. District Court's Decisions. . . . . . . . . . . . . . . . . 3
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
THE LANGUAGE, STRUCTURE, AND LEGISLATIVE HISTORY OF THE
ADA, TITLE VII, AND THE CIVIL RIGHTS ACT OF 1991, WHEN
PROPERLY CONSTRUED, COMPEL THE CONCLUSION THAT
DAMAGES ARE AVAILABLE IN ACTIONS FOR UNLAWFUL
RETALIATION IN EMPLOYMENT UNDER SECTION 503 OF THE
ADA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES
Alvarado v. Cajun Operating Co., 2009 WL 4724267
(9th Cir. 2009). . . . . . . . . . . . . . . . . . 10,21,25,26
Baker v. Windsor Republic Doors, Inc., 2009 WL 1231035 (W.D. Tenn.
May 1, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3
Baker v. Windsor Republic Doors, Inc., 635 F. Supp. 2d 765 (W.D. Tenn.
July 10, 2009). . . . . . . . . . . . . . . . . . . . . . . .3,4,5,6,7
Barnes v. Gorman, 536 U.S. 181 (2002). . . . . . . . . . . . . . . 16
Barnhart v. Walton, 535 U.S. 212 (2002) . . . . . . . . . . . . . . 10
Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). . . . . . . . . 11
Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53 (2006). . . . . . . . . . . . . . . . . .23
CBOCS West, Inc. v. Humphries, ___ U.S. ___,
128 S.Ct. 1951 (2008) . . . . . . . . . . . . . . . . . . . . . 6,20
Edwards v. Bookhaven Sci. Assocs., LLC, 390 F.
Supp. 2d 225 (E.D.N.Y. 2005). . . . . . . . . . . . . . . . . . . . 5
EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d 971 (N.D. Ohio
2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,21,22
EEOC v. Wal-Mart Stores, 187 F.3d 1241 (10th Cir. 1999) . . . . . . 18
Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005) . . . 17
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). . . 22
Foster v. Time Warner Entertainment,
Co., 250 F.3d 1189 (8th Cir. 2001). . . . . . . . . . . . . . . 18
Gomez-Perez v. Potter, ___ U.S. ___, 128 S.Ct. 1931 (2008) 6,7,20
Goodwin v. CNJ, Inc., 436 F.3d 44 (1st Cir. 2006). . . . . . 16,17
Jackson v. Birmingham Board of Education,
544 U.S. 167 (2005). . . . . . . . . . . . . . . . . . . . 6,19,20,24
Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961
(7th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . .5,10,26
Lamie v. United States Tr., 540 U.S. 526 (2004). . . . . . . . . . 22
Lee v. City of Columbus, 644 F. Supp. 2d 1000 (S.D. Ohio 2009). . . 25
Lutz v. GlendaleUnion High Sch., 403 F.3d 1061 (9th Cir. 2005). 25,26
Muller v. Costello, 187 F.3d 298 (2d Cir. 1999). . . . . . . . . . 18
Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . 9,10,17
Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002). . . . . . 18
Smith v. United States, 508 U.S. 223 (1993). . . . . . . . . . . . 18
Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999). . . 17
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989). . 26
STATUTES, RULES & REGULATIONS
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. passim
Section 3(2)(B), 42 U.S.C. § 12102(2)(B) . . . . . . . . . 25
Section 3(2)(C), 42 U.S.C. § 12102(2)(C) . . . . . . . . . 25
Title I, 42 U.S.C. § 12111. . . . . . . . . . . . . . . . . 11
Section 102, 42 U.S.C. § 12112. . . . . . . . . . . . .4,11,20
Section 107, 42 U.S.C. § 12117. . . . . . . . . . . . 12,13
Section 107(a), 42 U.S.C. § 12117(a) . . . . . . . . . . 12,14
Title II, 42 U.S.C. § 12131. . . . . . . . . . . . . . . 11
Title III, 42 U.S.C. § 12181. . . . . . . . . . . . . . . 11
Section 503, 42 U.S.C. § 12203. . . . . . . . . . . . passim
Section 503(a), 42 U.S.C. § 12203(a) . . . . . . . . . 12,23
Section 503(b), 42 U.S.C. § 12203(b) . . . . . . . . . . . .23
Section 503(c), 42 U.S.C. § 12203(c). . . . . . . . . 12,13
Civil Rights Act of 1991, 42 U.S.C. §§ 1981a et seq. . . . . . .passim
42 U.S.C. § 1981a(a)(1). . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 1981a(a)(2) . . . . . . . . . . . . . . . . . . passim
Pub. L. 102-166, Sec. . . . . . . . . . . . . . . . . . . 3, 16
Pub. L. 102-166, Sec. 102. . . . . . . . . . . . . . . . . . 16
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . passim
Section 704, 42 U.S.C. § 2000e-3. . . . . . . . . . . . . . . .
Section 706(g), 42 U.S.C. § 2000e-5(g). . . . . . 4,12,13,14
Fed. R. App. P. 25(c). . . . . . . . . . . . . . . . . . . . . . . .31
Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. App. P. 29(d). . . . . . . . . . . . . . . . . . . . . . . .30
Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . 30
Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . 30
Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . .30
6th Cir. R. 25(c). . . . . . . . . . . . . . . . . . . . . . . . 31
6th Cir. R. 25(f). . . . . . . . . . . . . . . . . . . . . . . . 31
OTHER AUTHORITIES
H.R. Rep. No. 102-40 (II) (1991),
reprinted in 1991 U.S.C.C.A.N. 694. . . . . . . . . . . . . . . 27
H.R. Rep. No. 101-485, pt. 3 (1990),
reprinted in 1990 U.S.C.C.A.N. 445. . . . . . . . . . . . . . . 28
Brian M. Saxe, Comment, When a Rigid Textualism Fails:
Damages for ADA Employment Retaliation,
2006 Mich. St. L. Rev. 555 (2006) . . . . . . . . . . . . . . . 24
Katie Mueting, A Case for Allowing Victims of ADA Retaliation
and Coercion in Employment to Recover Legal Damages,
92 Iowa L. Rev. 1493 (2007). . . . . . . . . . . . . . . . . . 24
Mark C. Weber, Workplace Harassment Claims under
the Americans with Disabilities Act: A New Interpretation,
14 Stan. L. & Pol'y Rev. 241, 262 (2003) . . . . . . . . . . . . 15
Nos. 08-6200 & 09-5722
_______________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________________________________________________
DOUGLAS BAKER,
Plaintiff/Appellee-Cross-Appellant,
v.
WINDSOR REPUBLIC DOORS, INC.,
Defendant/Appellant-Cross-Appellee.
_______________________________________________________
On Appeal from the United States District Court
for the Western District of Tennessee
No. 06-01137
_______________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AND THE UNITED STATES AS AMICI CURIAE IN
SUPPORT OF PLAINTIFF/APPELLEE-CROSS-APPELLANT
_______________________________________________________
STATEMENT OF INTEREST<1>
The Equal Employment Opportunity Commission is the agency established
by Congress to administer, interpret, and enforce the Title I employment
discrimination provisions of the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101 et seq. The Attorney General also has responsibility for enforcing
the employment provisions of the ADA against public employers. The appeal in
this case presents an important, and recurring, issue of statutory construction that
affects plaintiffs' ability to obtain full relief for employment-based retaliation
under the ADA. Because this Court's resolution of this issue will affect the
government's enforcement of the ADA, the Commission and the Department of
Justice offer their views to the Court pursuant to Fed. R. App. P. 29(a).
STATEMENT OF THE ISSUE
Whether an individual who is a victim of employment-based
retaliation that violates section 503 of the ADA, 42 U.S.C. § 12203, is eligible for
damages under the Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(2).
STATEMENT OF THE CASE
A. Statement of Facts and Course of Proceedings<2>
On June 20, 2006, Douglas Baker filed this suit against Windsor Republic
Doors ("WRD") under the ADA and state law, alleging that in refusing to allow
him to return to work, the company discriminated against him because of his
disability, denied him reasonable accommodation, and retaliated against him for
exercising his rights under the ADA. RE.1 (complaint) & 2 (amended complaint).<3>
The court denied WRD's motion for summary judgment (RE.43), and a four day
jury trial began on September 2, 2008. RE.95, 96, 97.
The jury returned a verdict finding that Baker had been regarded as disabled,
was a qualified individual, was not provided a reasonable accommodation under
the ADA (or parallel state law), and had suffered retaliation. The jury awarded
back pay and damages. RE.85. The court entered judgment against WRD and
ordered the company to reinstate Baker with reasonable accommodations. RE.88.
The reinstatement order was stayed pending resolution of post-trial motions and
appeals. RE.116.
B. District Court's Decisions
After trial, the district court granted WRD's motion for judgment as a matter
of law as to Baker's ADA discrimination and failure to accommodate claims, but it
denied the motion with regard to his retaliation claim. Baker v. Windsor Republic
Doors, Inc., 2009 WL 1231035 (W.D. Tenn. May 1, 2009). In a subsequent
decision, relevant to the argument the government and Commission advance as
amici, the court affirmed the jury award of compensatory damages on Baker's
ADA retaliation claim. Baker v. Windsor Republic Doors, Inc., 635 F. Supp. 2d
765 (W.D. Tenn. July 10, 2009).
The court began its analysis by setting out the text of the ADA's anti-
retaliation provision in section 503(a) as well as the remedies and procedures
provision in section 503(c). 635 F. Supp. 2d at 766 (quoting §§ 42 U.S.C.
12203(a) and (c)). The court then recognized that "Section 12117 [section 107 of
the ADA], which is one of the statutes referenced [in section 503(c)], incorporates
certain powers, remedies, and procedures of [Title VII of] the Civil Rights Act of
1964, including the provisions of 42 U.S.C. § 2000e-5 [the enforcement provisions
of Title VII, in section 706]." Id. The court noted that when the ADA was first
enacted, this same remedial scheme applied to claims for disability discrimination
under section 102 of the ADA, 42 U.S.C. § 12112. Id. The court further observed
that although section 2000e-5 does not authorize compensatory damages, Congress
enacted the Civil Rights Act ("CRA") of 1991, 42 U.S.C. § 1981a(a)(2), which
expanded the remedies available under 42 U.S.C. § 2000e-5(g)(1) to include
compensatory and punitive damages for certain violations of the ADA. Id. at 767.
Specifically, the court stated, "[w]hile § 1981a(a)(2) lists the statutory claims to
which it applies, such as violations of § 12112 [section 102 of the ADA], this
statute does not explicitly reference the anti-retaliation provision at § 12203
[section 503 of the ADA]." Id.
The court stated that a literal reading of § 1981a(a)(2) supports defendant's
argument that compensatory damages are not available for an ADA retaliation
claim. Id. at 768. It explained this rationale as follows.
The relevant statutory language extends compensatory damages
to statutory claims: (1) brought pursuant to the "powers,
remedies, and procedures" of § 2000e-5 through § 12117(a)
[Section 107 of the ADA] and (2) against a defendant who
violated one of the specific statutory provisions listed. A
retaliation claim under § 12203 [Section 503 of the ADA]
meets the first of these criteria but not the second because,
unlike § 12112 [Section 102 of the ADA], it was not explicitly
referenced in the 1991 Act.
Id. at 768-69 (emphasis in original). The court stated that this is the view of a
"slight majority of courts." Id., citing Kramer v. Banc of Am. Sec., LLC, 355 F.3d
961, 965 (7th Cir. 2004); EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d
971, 975-76 (N.D. Ohio 2008). The court also noted that a "minority view is that
the cross-reference to § 12117 in § 12203 indicates Congressional intent that the
remedies for violations of the latter statute should be the same as those available
under Title I of the ADA, which means § 1981a(a)(2) would necessarily extend
compensatory damages to retaliation in tandem with discrimination." Id. at 768
(citing Edwards v. Bookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225, 236
(E.D.N.Y. 2005)).
However, the court noted that a literal reading of the statute is not
controlling if it produces an absurd result or is contrary to other provisions of the
ADA. Id. at 769. Here, the court was persuaded by Baker's argument that finding
§ 1981a(a)(2) inapplicable to his claim would be contrary to Congress's intent "to
enact a co-extensive cause of action for retaliation when it proscribed intentional
discrimination at § 12112." Id.
The court gave particular emphasis to several recent Supreme Court
decisions finding that intentional discrimination encompasses retaliation. Id. at
769-70 (discussing Jackson v. Birmingham Board of Education, 544 U.S. 167
(2005) (Title IX case holding that a private right of action for retaliation is
contained within statutory prohibition against intentional discrimination on the
basis of sex); CBOCS West, Inc. v. Humphries, ___ U.S. ___, 128 S.Ct. 1951, 1958
(2008) (holding that a private right of action for retaliation is included within the
language of 42 U.S.C. § 1981, which ensures right of non-white people to "make
and enforce contracts"); Gomez-Perez v. Potter, ___ U.S. ___, 128 S.Ct. 1931
(2008) (interpreting "the ADEA federal-sector provision's prohibition of
'discrimination based on age' as ... proscribing retaliation," although the Act
contained no explicit prohibition against federal-sector retaliation) (internal
citation omitted)).
The court found the Supreme Court's holding in Gomez-Perez "most
relevant" to the issue presented in this case. Id. at 769. In that case, the Court
found that the presence of an explicit private sector anti-retaliation provision in the
ADEA was not exclusive because
[a] prohibition of "discrimination" either does or does not
reach retaliation, and the presence or absence of another
statutory provision expressly creating a private right of action
cannot alter [its] scope. In addition, it would be perverse if the
enactment of a provision explicitly creating a private right of
action - a provision that, if anything, would tend to suggest that
Congress perceived a need for a strong remedy - were taken as
a justification for narrowing the scope of the underlying
prohibition.
Id. at 770 (quoting 128 S.Ct. at 1938 (emphasis added)). Observing that Gomez-
Perez "seems to indicate that unless a statute states otherwise, prohibitions against
intentional discrimination are meant to include retaliation claims" (id. at 771
(citations omitted)), the district court concluded in this case that Baker's retaliation
damages award "is supported by both the explicit prohibition at § 12203 and the
implicit prohibition at § 12112." Id. Further, "[b]ecause § 1981a(a)(2)
[i]ndisputably permits a compensatory award for violations of § 12112, it would be
an absurd result to hold that Congress intended compensatory damages to be
available only under § 12112 and not § 12203 - considering that these statutes
codify identical causes of action for retaliation." Id. Therefore, the court held that
§ 1981a(a)(2) extends compensatory damages to ADA retaliation claims and
sustained the jury's damage award. Id.
SUMMARY OF ARGUMENT
This Court should affirm the district court's ruling that damages are
available in actions under section 503 of the ADA for retaliation in employment.
The language and structure of the ADA remedies provisions, the purposes of the
retaliation provision, and all relevant legislative history compel that result.
The "plain language" approach adopted by the Seventh and Ninth Circuits
should be rejected. The mere omission of a reference to the retaliation provision in
the damages statute creates ambiguity requiring use of other tools of statutory
construction. Reading the statute in light of all related statutory provisions and
understanding the ADA's incorporation of remedies from Title VII as modified by
the Civil Rights Act of 1991 compels the conclusion that damages are available for
ADA retaliation claims.
The omission of a reference to the retaliation provision in the damages
statute is not dispositive because Congress had a logical reason for that omission.
The ADA retaliation provision applies to claims arising under the public services
and public accommodations sections of the ADA as well as to the employment
section. These other protections were beyond the scope of the employment
discrimination amendments enacted in the 1991 Civil Rights Act.
The plain language approach focusing on only the damages provision
ignores the requirement that statutes must be read in the context of the entire
statutory scheme of which they are a part. But it also ignores some features of the
language of the provision in question.
Specifically, the courts following this approach do not account for the
damages provision's specific exclusion of disparate impact claims, and thus read
too much into the omission of any reference to retaliation claims. Similarly, they
ignore the fact that the damages statute, in providing damages for intentional
discrimination under the ADA, at least arguably provides the same relief for
retaliation claims because, as recognized by the Supreme Court, retaliation is a
form of intentional discrimination.
The plain language approach leads to absurd results in light of the important
purpose of anti-retaliation provisions in assuring unfettered access to the
machinery of law enforcement. That purpose is undermined by a reading of the
remedies provision that excludes effective relief for ADA retaliation claims.
Finally, the ambiguity created by the statutory silence and the absurdity of
reading that silence to mean Congress deliberately intended to preclude damages
justify looking to legislative history to clarify Congress's intent. The history of the
Civil Rights Act of 1991 and of the ADA retaliation provision both compel the
conclusion that Congress intended to provide the full panoply of relief for ADA
employment retaliation claims.
ARGUMENT
THE LANGUAGE, STRUCTURE, AND LEGISLATIVE HISTORY OF THE
ADA, TITLE VII, AND THE CIVIL RIGHTS ACT OF 1991, WHEN
PROPERLY CONSTRUED, COMPEL THE CONCLUSION THAT DAMAGES
ARE AVAILABLE IN ACTIONS FOR UNLAWFUL RETALIATION IN
EMPLOYMENT UNDER SECTION 503 OF THE ADA.
The starting point in statutory interpretation is the language at issue, and
"[t]he plainness or ambiguity of statutory language is determined by reference to
the language itself, the specific context in which that language is used, and the
broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997). The question of whether damages are available for retaliation
claims depends on the interpretation and interaction of several statutory provisions,
all of which are codified as sections of Title 42 of the United States Code and were
enacted as portions of three statutes: the ADA (42 U.S.C. §§ 12101 et seq.), Title
VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.), and the Civil
Rights Act of 1991 (42 U.S.C. § 1981a).
Two courts of appeals have concluded, based on their reading in isolation of
the damages provision of the Civil Rights Act, 42 U.S.C. § 1981a(a)(2), that
damages are not available in ADA retaliation cases because the damages statute
does not mention the retaliation provision of the ADA. See Kramer v. Banc of Am.
Secs., 355 F.3d 961 (7th Cir. 2004); Alvarado v. Cajun Operating Co., 2009 WL
4724267 (9th Cir. 2009). More specifically, the Kramer court stated that "the plain
language" of section 1981a(a)(2) "permits recovery of compensatory and punitive
damages ... only for those claims listed therein." 355 F.3d at 965. Because
"claims of retaliation under the ADA (§ 12203) are not listed" in section
1981a(a)(2), the court concluded that the remedies for such claims are "limited to
the remedies set forth in § 2000e-5(g)(1)." Id. Accord Alvarado, 2009 WL
4724267at *6 ("The text of section 1981a is not ambiguous.").
However, as the Supreme Court has observed, statutory silence "normally
creates ambiguity. It does not resolve it." Barnhart v. Walton, 535 U.S. 212, 218
(2002). Given the uncertainty that Congress's silence creates in this case, other
interpretive tools must be employed to understand its intent. See Barnhart v.
Peabody Coal Co., 537 U.S. 149, 168 (2003) ("We do not read the enumeration of
one case to exclude another unless it is fair to suppose that Congress considered
the unnamed possibility and meant to say no to it."). In this case, it is the
Commission's and government's view that Congress could not have meant to say
no to damages for ADA retaliation claims. All available evidence of the structure
of the ADA remedies provisions, of the purposes served by anti-retaliation
provisions, and of congressional intent both in enacting the ADA anti-retaliation
provision and in expanding remedies for employment discrimination in the 1991
Civil Rights Act, supports the conclusion the district court reached here, that
damages are available for ADA retaliation claims.
To understand the interaction between the relevant statutory provisions, it is
necessary to recognize the basic structure of the ADA. The ADA contains several
subchapters commonly referred to as "Titles." Title I governs "Employment,"
Title II governs "Public Services," and Title III governs "Public Accommodations
and Services Operated by Private Entities." See Title I, 42 U.S.C. §§ 12111 et
seq.; Title II, 42 U.S.C. §§ 12131 et seq.; Title III, 42 U.S.C. §§ 12181 et seq.
Each of these subchapters, or "Titles," contains its own remedies and enforcement
provisions. Section 102 of Title I, 42 U.S.C. § 12112, prohibits employment-based
discrimination, and section 107 of Title I, 42 U.S.C. § 12117, states that the
remedies and procedures for violations of Title I are those remedies and procedures
available pursuant to Title VII of the Civil Rights Act of 1964, including those
found in section 706(g), 42 U.S.C. § 2000e-5(g).<4> Title V of the ADA, which is
titled "Miscellaneous Provisions," contains section 503, 42 U.S.C. § 12203, which
broadly prohibits retaliation and coercion under Titles I, II, and III.<5> Unlike Titles
I, II, and III, however, Title V does not contain its own remedies and procedures
provision. Instead, section 503(c) of Title V states that the remedies and
procedures available for employment-based retaliation claims under Title I are
those remedies available under section 107, 42 U.S.C. § 12117.
This statutory scheme establishes that the remedies available for
employment-based retaliation claims under section 503 are coextensive with the
remedies available at section 107, 42 U.S.C. § 12117, which, in turn, are
coextensive with the remedies available pursuant to Title VII, including those at
section 706(g), 42 U.S.C. § 2000e-5(g). While section 706(g) does not authorize
compensatory and punitive damages, in the 1991 Civil Rights Act, Congress
amended 42 U.S.C. § 1981 to permit damages in Title VII and ADA cases, like this
case, brought under section 706 to seek relief for intentional discrimination. See
42 U.S.C. § 1981a(a)(1) (authorizing damages for Title VII cases brought under
the powers of section 706);<7> 42 U.S.C. § 1981a(a)(2) (authorizing compensatory
and punitive damages in ADA cases brought under the powers of section 706).<8>
Accordingly, because compensatory and punitive damages are available for Title
VII violations under section 706(g), 42 U.S.C. § 2000e-5(g), they are also available
under section 107 of the ADA, 42 U.S.C. § 12117 (which incorporates the
remedies of section 706(g)), and therefore - pursuant to section 503(c) of the ADA
(which incorporates the remedies and procedures of section 107 of the ADA) - for
employment-based retaliation claims.
Therefore, as the district court correctly concluded in this case, WRD's
argument - that compensatory damages are unavailable because section
1981a(a)(2) only lists claims brought under section 12112 (section 102 of Title I of
the ADA) and fails also to list claims of retaliation under section 12203 (section
503 of Title V of the ADA) - should be rejected. Appellant Br. at 38-43. The
absence of a reference to section 503 in section 1981a(a)(2) does not operate to
exclude compensatory and punitive damages for employment-based retaliation
claims for two reasons.
First, as just explained, these damages are available by a straight, albeit
extended, pathway via the reference in section 1981a(a)(2) to section 706 of Title
VII, which, in turn, provides the remedies available under section 107 of the ADA,
which, in turn, supplies the remedies authorized by section 503(c). Because the
damages are available under this incorporation pathway, there was no need for
Congress explicitly to list the retaliation provision. See, e.g., Mark C. Weber,
Workplace Harassment Claims under the Americans with Disabilities Act: A New
Interpretation, 14 Stan. L. & Pol'y Rev. 241, 262 (2003) (concluding the
"incorporation-by-reference pathway leads in a straight line from ADA Title V's
section 12203 to ADA Titles I and II to the Civil Rights Act of 1964 to the Civil
Rights Act of 1991, placing section 12203 squarely within section 1981a").
Second, Congress's decision not to enumerate claims under section 503
when amending section 1981 makes sense given the text and scope of section 503.
Reference to section 503 would have expanded the scope of remedies available for
retaliation claims brought under the public accommodations and public services
provisions of Titles II and III of the ADA, when all Congress intended in adding
the damages provisions to section 1981 was to provide additional remedies for
intentional employment discrimination claims. See Civil Rights Act of 1991, Pub.
L. 102-166, Sec. 3 ("The purposes of this Act [include] - (1) to provide remedies
for intentional discrimination and unlawful harassment in the workplace ...."), &
Sec. 102 (amending 42 U.S.C. § 1981 to add new section, 42 U.S.C. § 1981a,
entitled "Damages in cases of intentional discrimination in employment").
Titles II and III have their own incorporated remedies provisions, made
applicable to retaliation claims by the operation of section 503(c). Title II permits
awards of compensatory but not punitive damages in private suits brought against
public entities for claims of disability discrimination in the provision of public
services. See Barnes v. Gorman, 536 U.S. 181, 189 (2002). Title III permits only
the imposition of injunctive relief in private suits challenging discrimination in the
provision of public services by private entities. See Goodwin v. CNJ, Inc., 436
F.3d 44, 49-51 (1st Cir. 2006) (citing Smith v. Wal-Mart Stores, Inc., 167 F.3d 286,
293 (6th Cir. 1999). Thus, it is apparent that Congress could not refer to section
503 of the ADA without changing the remedial provisions of ADA titles it was not
attempting to amend when it undertook its historic expansion of employment
discrimination remedies by passing the Civil Rights Act of 1991.
In refusing to follow the incorporation-by-reference pathway through the
relevant sections of the three related statutes, WRD's argument (Appellant Br. at
38-39), as well as the Kramer and Alvarado courts' "plain language" analysis,
contravene the Supreme Court's directive that courts should examine statutory
language "in light of context, structure, and related statutory provisions." Exxon
Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 558 (2005); Robinson, 519 U.S. at
341 (courts must consider the "broader context of the statute as a whole"). Here,
the three statutes are linked, by explicit references, and when they are read
together, it is apparent from the statutory language itself that damages are available
in an ADA retaliation action. By failing to read the relevant statutes as a whole,
the Seventh and Ninth Circuits' interpretation focuses too narrowly only on the
damages provision itself. In considering the remedies available in an ADA
retaliation case, it is indefensible to focus on an amendment providing damages
and ignore the language of the primary statute initially providing the right of
action. The Supreme Court has cautioned that statutory interpretation does not
"look at one word or one provision in isolation" but rather "looks to the statutory
scheme for clarification and contextual reference." Smith v. United States, 508
U.S. 223, 233-34 (1993) (emphasizing the "holistic" nature of statutory
interpretation). If one starts with the ADA retaliation provision and traces its
incorporation provisions back to Title VII, and then considers the Civil Rights Act
amendment providing damages for intentional discrimination claims brought under
section 706 of Title VII, it is clear that those damages are available for ADA
retaliation claims against employers.<9>
In addition to ignoring the incorporation pathway Congress set out, the
Seventh and Ninth Circuits also missed the significance of key relevant portions of
the single provision they did examine. Notably, in considering the plain language
of section 1981a, neither court discussed the fact that the only type of claim
Congress specifically exempted from the damages provision was one for disparate
impact. See 42 U.S.C. § 1981a(a)(2) ("In an action . . . against a respondent who
engaged in unlawful intentional discrimination (not an employment practice that is
unlawful because of its disparate impact)"). The express exclusion of impact
claims supports the interpretation that Congress included retaliation claims among
those for which damages are available.
Further, the courts' insistence that the reference to violations under section
102 is dispositive of the question whether Congress meant to provide damages for
retaliation claims ignores the fact that this reference is both over- and under-
inclusive in light of the stated intent to provide damages for intentional
discrimination claims. All violations enumerated in section 102 are not species of
intentional discrimination, and the unmentioned retaliation claim is a form of
intentional discrimination. There is no question that where retaliation is
proscribed, it is understood to be a form of intentional discrimination, because by
definition it entails treating an individual differently because he or she has engaged
in statutorily protected conduct. For example, in Jackson v. Birmingham Board of
Education, 544 U.S. 167 (2005), a Title IX case holding that a private right of
action for retaliation is contained within the statutory prohibition against
intentional discrimination on the basis of sex, the Court explained that:
Retaliation is * * * a form of "discrimination" because
the complainant is subjected to differential treatment. * *
* Moreover, retaliation is discrimination "on the basis of
sex" because it is an intentional response to the nature of
the complaint: an allegation of sex discrimination. We
conclude that when a funding recipient retaliates against
a person because he complains of sex discrimination, this
constitutes intentional discrimination on the basis of sex
in violation of Title IX.
544 U.S. at 173-174 (internal citations omitted).
If the ADA had no retaliation provision, the Supreme Court's reasoning in
Jackson and other recent cases examining retaliation claims brought under various
civil rights statutes suggests that such protection would be inferred. See CBOCS
West, Inc. v. Humphries, ___ U.S. ___, 128 S.Ct. 1951, 1958 (2008) (holding that a
private right of action for retaliation is included within the language of 42 U.S.C. §
1981, which ensures the right of non-white people to "make and enforce
contracts"); Gomez-Perez v. Potter, ___ U.S. ___, 128 S.Ct. 1931 (2008)
(interpreting "the ADEA federal-sector provision's prohibition of 'discrimination
based on age' as ... proscribing retaliation," although the Act contained no explicit
prohibition against federal-sector retaliation) (internal citation omitted)).
Under the Supreme Court's holdings in Jackson, CBOCS, and Gomez-Perez,
the relief afforded under the ADA's prohibition against discrimination is also
afforded to those who suffer retaliation in employment in violation of the ADA.
This is so because the reference in the damages provision of the Civil Rights Act of
1991 to the intentional discrimination provision of the ADA (section 102, 42
U.S.C. § 12112) necessarily encompasses the provision of a similar remedy for
retaliation as a form of intentional discrimination. Put another way, if the Seventh
and Ninth Circuits are correct in thinking that the language of section 1981a is
dispositive and that the incorporation pathway should be rejected, the availability
of damages for retaliation claims is nonetheless provided by the statute's reference
to claims for intentional discrimination. Of course the ADA does prohibit
retaliation and interference explicitly, so there is no need to infer this prohibition
from the prohibition of intentional discrimination. However, since the damages
provision at issue omits reference to the retaliation provision of the ADA, it is
important to recognize that reading the plain terms of the ADA prohibitions on
both discrimination and retaliation in light of the Supreme Court decisions
construing the term discrimination to encompass retaliation leads to the conclusion
that the same damages available for other forms of intentional discrimination must
be available for retaliation claims.
Courts rejecting the statutory analysis compelled by Congress's
incorporation scheme have suggested that following the logic of the incorporation
pathway would somehow nullify the reference in section 1981a(a)(2) to sections
12112 and 12112(b)(5) or make those references superfluous. See Alvarado, 2009
WL 4724267 at *7 (quoting EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d
971, 975-76 (N.D. Ohio 2008)). This objection is unfounded. Congress is not
required to use the same method in every instance to achieve its purposes when it
has a reason for using different approaches. It is unclear why the incorporation
pathway dictated by the reference to claims brought under section 706 of Title VII
- to support damages for retaliation claims - should empty the references to the
specific discrimination provisions of the ADA "of any meaning" as the Faurecia
court believed. 601 F. Supp. 2d at 976. That Congress elected a straightforward
method of identifying the discrimination claims provided in Title I for which
damages are available says nothing one way or the other about the incorporation
route it believed was necessary for providing remedies for retaliation.
Insistence on a rigidly literal reading of the damages provision in isolation
has led the Seventh and Ninth Circuits to an absurd result that militates against
their approach to statutory construction. The Supreme Court has noted that it is
possible for a statute that appears clear on its face to become ambiguous when
viewed in the context of the full legislative scheme, FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132 (2000), and that a statute is ambiguous "where
the disposition required by the text" would lead to an absurd result, Lamie v.
United States Tr., 540 U.S. 526, 536 (2004).
While the crabbed and literal reading of section 1981a(a)(2) embraced by the
Seventh and Ninth Circuits may support WRD's argument, the issue of whether
damages are available for retaliation claims is too complex and important to rest on
the mere absence of an explicit reference to section 503 of the ADA. It is
inconceivable that Congress would have intended to adopt a statutory scheme that
protects individuals from both disability based discrimination and retaliation based
on asserting one's rights under the disability provisions, but then provide effective
remedies only for the underlying discrimination claims and not for retaliation
claims. The ADA retaliation provision is arguably more protective of individuals'
rights than the Title VII retaliation provision, in that it expressly prohibits not only
discrimination against individuals who engage in protected activity, 42 U.S.C. §
12203(a), as Title VII does in 42 U.S.C. § 2000e-3, but also makes it unlawful "to
coerce, intimidate, threaten, or interfere with any individual in the exercise of . . .
any right granted or protected" by the ADA, 42 U.S.C. § 12203(b). It would be
anomalous indeed for Congress to have insured that victims of retaliation under
Title VII would obtain compensatory and punitive damages upon proof of
retaliation, but to deny that remedy to victims of employment based retaliation or
interference under the ADA.
The anomaly of this reading is acutely obvious in light of the rationale
underlying anti-retaliation provisions. The Supreme Court has emphasized that the
anti-retaliation provisions of federal anti-discrimination laws must be read broadly
to effectuate the underlying enforcement scheme. In Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 66 (2006), the Court held that Title VII's
anti-retaliation provisions must be interpreted more broadly than its substantive
provisions because "Title VII depends for its enforcement upon the cooperation of
employees who are willing to file complaints and act as witnesses." Providing a
narrower spectrum of remedies to persons who are punished for complaining about
discrimination on the basis of disability would certainly deter employees from
invoking federally protected statutory rights, such as by filing charges with the
EEOC. In addition, judicial imposition of a subordinate remedial scheme for ADA
retaliation claims flies in the face of the basic precept that "[r]etaliation is, by
definition, an intentional act. It is a form of 'discrimination' because the
complainant is being subjected to different treatment." Jackson, 544 U.S. at 171-
72. The available remedies for all such discrimination should be the same. No
federal anti-discrimination statutory scheme has a lesser remedial scheme for
retaliation, and Congress could not have intended such a result under the ADA.<10>
The Ninth Circuit sought to articulate an explanation for its narrow literal
reading of the damages provision that would avoid the absurd results epithet. It
concluded that the exclusion of damages for retaliation makes sense because a
retaliation claim does not depend on proof of coverage under the ADA, while
discrimination claims do, so "Congress may have well advisedly limited punitive
and compensatory damage awards to those plaintiffs who are able to prove
discrimination due to an actual disability." Alvarado, 2009 WL 4724267 at *7.
This conclusion is insupportable. First, many victims of retaliation under the ADA
are individuals with disabilities. Second, the discrimination protections of the
ADA are not extended only to individuals with "actual" disabilities, since those
regarded as disabled or who have a record of a disability are also protected. See 42
U.S.C. § 12102(2)(B) ("record of"), § 12102(2)(C) ("regarded as"). And third,
several of the provisions of section 102 also apply to individuals who do not
necessarily have disabilities, such as the prohibition on discrimination against
someone associated with an individual with a disability in section 102(b)(4), and
the prohibitions on various medical examinations and inquiries in section 102(d),
which necessarily extend to individuals who do not have disabilities. See Lee v.
City of Columbus, 644 F. Supp. 2d 1000, 1011-12 (S.D. Ohio 2009) (relying on
decisions and reasoning in other circuits, finding that a plaintiff need not prove a
disability in order to challenge a medical examination or inquiry under section
102(b)(4)) (citations omitted).
The Ninth Circuit also opined that the "limitation is unsurprising because
ADA retaliation claims have been historically redressed by equitable relief only
pursuant to 42 U.S.C. § 2000e-5(g)(1)." Alvarado, 2009 WL 4724267 at *6 (citing
Lutz v. GlendaleUnion High Sch., 403 F.3d 1061, 1067-69 (9th Cir. 2005)). It is
unclear what the court meant by this curious observation. Equitable remedies were
the only remedies available for any violations of Title VII or the ADA until
Congress enacted the Civil Rights Act of 1991, so this was never a unique feature
of retaliation claims under either statute. The cited case, decided several years
after damages and jury trials became available in Title VII and ADA cases, did not
hold that only equitable relief was available for a retaliation claim; rather the court
concluded that the plaintiff was not entitled to a jury trial with the attendant
compensatory or punitive damages for her retaliation claims because she had
waived the right to a jury. Lutz, 403 F.3d at 1067-69.
In that the Seventh and Ninth Circuits considered the plain language
dispositive, neither considered the legislative history that supports the reading of
the statutory provisions advanced here. Kramer, 355 F.3d at 966; Alvarado, 2009
WL 4724267 at *6. Because their plain language approach leads to absurd results
that are not "coherent and consistent" with the overall statutory scheme, United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989), consulting the
legislative history to ascertain Congress's intent is entirely appropriate. The
history of the ADA confirms that Congress intended compensatory and punitive
damages to be available for employment-based retaliation claims. The House
Committee on the Judiciary provided a section-by-section analysis of the ADA in
its report on the bill. It states that "section 503(c) provides the same remedies and
procedures for victims of retaliation and coercion as in the underlying title," i.e.,
victims of employment-based retaliation "would have the same remedies and
procedures available under section 107 as an individual alleging employment
discrimination." H.R. Rep. No. 101-485, pt. 3, at 72 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 495.
The report further states that "the cross-reference to [T]itle VII in section
107" means that "any amendments to [T]itle VII that may be made . . . in any other
bill would be fully applicable to the ADA." Id. at 48. The committee report
explained that it rejected an amendment to eliminate section 107's cross-reference
to Title VII and to substitute the actual words of the cross-referenced sections,
which it called "an attempt to freeze the current [T]itle VII remedies (i.e., equitable
relief, including injunctions and back pay) in the ADA." Id. Significantly, the
committee report states, "[b]y retaining the cross-reference [in section 107] to
[T]itle VII, the Committee's intent is that the remedies of [T]itle VII, currently and
as amended in the future, will be applicable to persons with disabilities." Id.
(emphasis added). Thus, the legislative history of the ADA reveals that Congress
intended that any future amendments to Title VII expanding the available remedies
- such as the 1991 Civil Rights Act - would apply to claims under section 107 of
the ADA and, accordingly, to retaliation-based claims under section 503.
And the legislative history of the 1991 CRA also confirms that Congress
intended compensatory and punitive damages to be broadly available for claims of
intentional employment discrimination, including employment-based retaliation
claims. See House Judiciary Committee report, H.R. Rep. No. 102-40 (II), at 4
(1991), reprinted in 1991 U.S.C.C.A.N. 694, 697 ("Certain sections of Title VII are
explicitly cross-referenced in [section 12117] of the ADA, to ensure that persons
with disabilities have the same remedies as under Title VII. This would include
having the same remedies as Title VII, as amended by this Act, and by any future
amendment. This issue was specifically addressed by the Committee during its
consideration of the ADA."); id. at 27, 1991 U.S.C.C.A.N. at 721 ("All too
frequently, Title VII leaves victims of employment discrimination without
remedies of any kind [for] their injuries and allows employers who intentionally
discriminate to avoid any meaningful liability.") (footnote omitted).
CONCLUSION
This Court should affirm the district court's order concluding that section
503 of the ADA authorizes compensatory damages. This is the proper result
through the reference in 42 U.S.C. § 1981a(a)(2) to Title VII's section 706(g) (42
U.S.C. § 2000e-5(g)), which, in turn, provides the remedies available under section
107 of the ADA, which, in turn, supplies the remedies authorized by section
503(c).
Respectfully submitted,
THOMAS E. PEREZ JAMES L. LEE
Assistant Attorney General Deputy General Counsel
MARK L. GROSS VINCENT J. BLACKWOOD
LISA WILSON EDWARDS Acting Associate General Counsel
Attorneys
CAROLYN L. WHEELER
Assistant General Counsel
/s/ Donna J. Brusoski
U.S. Department of Justice ________________________
Civil Rights Division DONNA J. BRUSOSKI
Appellate Section Attorney
Ben Franklin Station, RFK 3748
P.O. Box 14403
Washington, D.C. 20044-4403 U.S. EQUAL EMPLOYMENT
202-514-5695 OPPORTUNITY COMMISSION
202-514-5695 Office of General Counsel
131 M St., N.E.
Washington, D.C. 20507
(202) 663-7049
donna.brususki@eeoc.gov
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/s/ Donna J. Brusoski
_________________________________
Donna J. Brusoski
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, N.E.
Washington, D.C. 20507
(202) 663-7049
donna.brusoski@eeoc.gov
Dated: December 21, 2009
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/s/ Donna J. Brusoski
________________________________
Donna J. Brusoski
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 M Street, N.E.
Washington, D.C. 20507
(202) 663-7049
donna.brusoski@eeoc.gov
***********************************************************************
<<FOOTNOTES>>
<1> The government takes no position with respect to any other issue presented in
this appeal.
<2> The government adopts the district court's statement of the facts in its May 1,
2009, opinion for purposes of this brief. Baker v. Windsor Republic Doors, Inc.,
2009 WL 1231035 (W.D. Tenn. May 1, 2009); RE.121.
<3> Citations to the record are abbreviated "RE." and refer to the district court docket
entry number.
<4> Section 107(a) of the ADA, 42 U.S.C. § 12117(a), provides:
Powers, remedies, and procedures. - The powers,
remedies, and procedures set forth in sections 2000e-4,
2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title
[sections 705, 706, 707, 709, and 710 of Title VII of the
Civil Rights Act of 1964] shall be the powers, remedies,
and procedures this subchapter provides to the
Commission, to the Attorney General, or to any person
alleging discrimination on the basis of disability in
violation of any provision of this chapter ...
<5> Sections 503(a) and (b) of the ADA, 42 U.S.C. §§ 12203(a) & (b), provide:
(a) Retaliation. - No person shall discriminate against
any individual because such individual has opposed any
act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this chapter.
(b) Interference, coercion, or intimidation. - It shall be
unlawful to coerce, intimidate, threaten, or interfere with
any individual in the exercise or enjoyment of, or on
account of his or her having exercised or enjoyed, or on
account of his or her having aided or encouraged any
other individual in the exercise or enjoyment of, any right
granted or protected by this chapter.
<6> Section 503(c) of the ADA, 42 U.S.C. § 12203(c), provides:
Remedies and procedures - The remedies and procedures
available under sections 12117, 12133, and 12188 of this
title [sections 107, 203, and 308 of the ADA] shall be
available to aggrieved persons for violations of
subsections (a) and (b) of the section, with respect to
subchapter I, subchapter II and subchapter III,
respectively, of this chapter.
<7> Section 1981a(a)(1) provides:
In an action brought by a complaining party under 706 or
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5
or 2000e-16) against a respondent who engaged in
unlawful intentional discrimination (not an employment
practice that is unlawful because of its disparate impact)
prohibited under section 703, 704, or 717 of the Act (42
U.S.C. 2000e-2, 2000e-3, or 2000e-16), ... , the
complaining party may recover compensatory and
punitive damages as allowed in subsection (b), in
addition to any relief authorized by section 706(g) of the
Civil Rights Act of 1964, from the respondent.
<8> Section 1981a(a)(2) provides:
In an action brought by a complaining party under the
powers, remedies, and procedures set forth in section 706
or 717 of the Civil Rights Act of 1964 (as provided in
section 107(a) of the Americans with Disabilities Act of
1990 (42 U.S.C. 12117(a)), ... against a respondent who
engaged in unlawful intentional discrimination (not an
employment practice that is unlawful because of its
disparate impact) under ... section 102 of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12112) ... the
complaining party may recover compensatory and
punitive damages as allowed in subsection (b), in
addition to any relief authorized by section 706(g) of the
Civil Rights Act of 1964, from the respondent.
<9> We note that the Eighth, Tenth, and Second Circuits all have affirmed jury
awards of compensatory and/or punitive damages in ADA employment-based
retaliation cases, suggesting that these circuits view section 503 as authorizing
such damages. See, e.g., Salitros v. Chrysler Corp., 306 F.3d 562, 574-76 (8th Cir.
2002) (affirming jury's punitive damage award for retaliation claim); Foster v.
Time Warner Entertainment, Co., 250 F.3d 1189, 1196-98 (8th Cir. 2001)
(affirming jury's compensatory and punitive damage award for retaliation claim);
EEOC v. Wal-Mart Stores, 187 F.3d 1241 (10th Cir. 1999) (in retaliation and
discrimination case, affirming jury's punitive damage award); Muller v. Costello,
187 F.3d 298, 314-15 (2d Cir. 1999) (affirming compensatory damage award based
on jury's finding of retaliation).
<10> See Katie Mueting, A Case for Allowing Victims of ADA Retaliation and
Coercion in Employment to Recover Legal Damages, 92 Iowa L. Rev. 1493 (2007)
(finding that the Kramer court misinterpreted the ADA and the Civil Rights Act of
1991); Brian M. Saxe, Comment, When a Rigid Textualism Fails: Damages for
ADA Employment Retaliation, 2006 Mich. St. L. Rev. 555, 562 (2006) (criticizing
Kramer and arguing that compensatory and punitive damages are available to
victims of retaliation under section 503).