Articles, Analysis,
and Commentary

Can I Recover Monetary Damages for an ADA Violation?

The Americans with Disabilities Act is now some 30 years old. A basic goal, a thrust of law, is to require that places of public accommodation be accessible to those laboring under a disability. If a violation occurs, the ADA creates what is known as a “private right of action” in federal court for individuals who have suffered discrimination on the basis of disability. In such a claim, the plaintiff may obtain “preventative” relief, including: a temporary or permanent injunction a restraining order or “other” orders.

An injunction is an order from a court directing that an individual take, or refrain from taking, a certain action. The enabling regulations, 28 CFR 36.501 - Private suits, with respect to specific ADA violations, provide:

 “Injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by the Act or this part. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by the Act or this part.”

In addition to the specified equitable relief, a court may also order a civil penalty assessed against the defendant, and award prevailing party attorney’s fees and costs to the successful plaintiff. There is a notable limitation on the recovery available under the ADA. While these notions are no longer new, what is still surprising to many, though, is that the successful plaintiff, may not recover compensation in the form of money damages-compensatory or punitive.  “The ADA does not permit monetary damages to be assessed …. in lawsuits brought by individuals.” [1]  Monetary damages would include things such as lost wages or medical expenses, i.e. economic damage, as well as non-economic damages, which would be for things like physical and emotional pain, turmoil or discomfort.

The result may be different in select Maryland counties. State Government Article § 20-1202, applicable in Montgomery, Howard and Prince George’s counties, provides:

“a person that is subjected to a discriminatory act prohibited by the county code may bring and maintain a civil action against the person that committed the alleged discriminatory act for damages, injunctive relief, or other civil relief” as well as "prevailing party reasonable attorney's fees, expert witness fees, and costs.”

The various county codes implicated are set forth in the appendix. At least in the three listed counties, Maryland law prohibits discrimination based on disability in public accommodations, and, moreover, provides a private right of action to sue for a violation. The plain terms of this provision allow for the recovery of monetary damages by a successful plaintiff.

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Appendix A
Montgomery County Code § 27-11 Discriminatory practices, provides:

“a)   An owner, lessee, operator, manager, agent, or employee of any place of public accommodation in the County must not, with respect to the accommodation:

(1)   make any distinction with respect to any person based on race, color, sex, marital status, religious creed, ancestry, national origin, disability, sexual orientation, or gender identity in connection with:
(A)   admission;
(B)   service or sales; or
(C)   price, quality, or use of any facility or service;
(2)   display, circulate or publicize or cause to be displayed, circulated or publicized, directly or indirectly, any notice, communication, or advertisement that states or implies:
(A)   any distinction in the availability of any facility, service, commodity, or activity related to the accommodation that would violate paragraph (1), or
(B)   that the patronage or presence of any person is unwelcome, objectionable, unacceptable, or not desired or solicited on account of any person's race, color, sex, marital status, religious creed, ancestry, national origin, disability, sexual orientation, or gender identity;
(3)   retaliate against any person because that person:
(A)   lawfully opposed any discriminatory practice under this division; or
(B)   filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this division;
(4)   assist in, compel, or coerce any discriminatory practice under this division;
(5)   obstruct or prevent enforcement or compliance with this division; or
(6)   attempt directly or indirectly to commit any discriminatory practice under this division.
(b)   A person must not refuse to make any readily achievable modification that would give a person with a disability equal opportunity to use and enjoy the public accommodation.”

Appendix B

Sec. 12.210 of The Howard County Code, Unlawful public accommodations practices, provides:

“Discrimination/discriminatory means acting, or failing to act or unduly delaying any action regarding any person(s) because of:

Race,

Creed,

Religion,

Disability,

Unlawful practices means it shall be unlawful if, because of discrimination, an owner or operator (or his/her agent) of public accommodations denies any person any of the accommodations, advantages, facilities or privileges of such public accommodations.

Color,

Sex,

National origin,

Age,

Occupation,

Marital status,

Political opinion,

Sexual orientation,

Personal appearance,

Familial status, or

Gender identity or expression in such a way that the person(s) are adversely affected in the area of public accommodations.

Public accommodations means any place which holds itself out as inviting the public to utilize its goods and services, whether or not for profit. Public accommodations does not include accommodations that are distinctly private or personal.

Appendix C

Sec. 2-220. Of the Prince Georges Co. Code, Denial of public accommodations, provides:

“No owner or operator of a place of public accommodation, located in the County, or the agent of any owner or operator of such place of public accommodation, shall deny to any person any of the accommodations, advantages, facilities, or privileges, of such a place of public accommodation because of discrimination; provided, however, that nothing in this Section shall be construed or interpreted to prohibit any owner or operator of any such establishment, or any agent or employee thereof, from the right to deny service to any person for failure to conform to the usual and regular requirements, standards and regulations for such establishment so long as the denial is not based upon discrimination as defined in Section 2-186; and provided further, however, that discrimination based on physical or mental handicap as defined in Section 2-186 shall not be wrongful with regard to the failure of any owner or operator of any such establishment, or any agent or employee thereof, to fail or refuse to renovate, alter or modify any such establishment in order to accommodate any person with a physical or mental handicap, as defined herein, except as otherwise required by the Building Code for Prince George's County, Maryland.

(CB-1-1972; CB-48-1976

Eric T Kirk
Attorney

After graduating with honors from Albany Law School in New York, Eric Kirk has spent most of his 25 year legal career battling insurance companies to secure fair and just compensation for his clients in Maryland, New York, and Florida.

410-657-5962