Narrowing the Remedial Gap: Damages for Disability Discrimination in Outsourced Federal Programs

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The federal government incarcerates hundreds of thousands of people on any given day, in jails, prisons, and immigration detention facilities. For the very large portion who have physical or mental disabilities, disability discrimination can cause them grievous harm—it can extend their incarceration, undermine the fairness of judicial proceedings, and impose acute medical problems. Notwithstanding longstanding protective statutory law and robust regulations, federal prisoners and detainees with disabilities have very limited remedial options, because sovereign immunity protects the federal government from lawsuits seeking damages. But what about the significant group of prisoners/detainees—more than 65,000 at a time, in recent years—who are incarcerated by the federal government in privately operated facilities? In this essay, I argue that the Rehabilitation Act (the antidiscrimination law that preceded the Americans with Disabilities Act) authorizes damages awards against private firms that commit disability discrimination while administering outsourced federal programs. This argument reaches broader than federal incarceration, but solves an especially acute problem in that arena. The argument has two steps. Step 1 is a textual argument that the statute imposes liability for discrimination in “federally conducted” programs without limiting liability to the federal government. And Step 2 points out that contractors are not protected by sovereign (or other governmental) immunities, so damages liability is available against them. There is nothing anomalous about either of these steps. It is routine and non-controversial for causes of action to cover only governmental activity, but to allow non-governmental defendants. And it is likewise routine to hold a federal contractor liable in damages in a situation in which the federal agency does not face a damages threat. Nevertheless, the argument is novel—it has not been accepted or rejected by any court. If accepted, the result would be some degree of deterrence and remediation for grievous harms imposed on vulnerable subjects of federally conducted programs, including federal incarceration.