In an interesting development on December 11, 2009, the Ninth Circuit Court of Appeals held that, in a claim of retaliation under the Americans With Disabilities Act, compensatory and punitive damages are not available to a successful plaintiff-employee and that such a claim does not provide a right to trial by jury. The decision of this three-judge panel was authored by Nevada's Johnnie Rawlinson; she was joined by Judge Bybee of Nevada and a district court judge appearing by designation at the Circuit Court.
Until this decision is overturned or modified, an employee who prevails on a claim of retaliation under the ADA can obtain only equitable remedies (such as reinstatement), back pay and lost benefits, front pay under certain circumstances, and attorneys’ fees and costs of the lawsuit.
This decision certainly offers no free hand to retaliate without consequence against an employee who requests accommodation, asserts an internal complaint of disability discrimination, or files a charge of discrimination or a lawsuit asserting an ADA violation. Aside from the substantial remedies still available for a successful ADA retaliation claim, it is inevitable that reconsideration and reversal will be sought before a larger panel of the Ninth Circuit Court. Additionally, the ruling could be addressed by Congress in a manner similar to prior employer-friendly limits on the ADA which were obliterated by the Americans With Disabilities Act Amendments Act.
