DBTAC
Southwest ADA Center

Call 1-800-949-4ADA
for Technical Assistance


Powered by Google

Get Adobe Reader for PDF files

Legal E-Bulletin - January 2001

My Experience with Assistance Animals Led Me to the Dog and Pony Show

 


My Experience with Assistance Animals Led Me to the Dog and Pony Show, Let Me See Pigs Fly and Monkeys do Business: A Quick e-Bulletin Survey of the Federal Law.

My first close-up experience with a service animal occurred in one of my least favorite college classes.  I was then a psychology major, and attended classes more or less at pace with the recommended schedule.  My school was a large, public university, and introductory psychology classes had an enrollment of nearly 200 students.  I saw a gorgeous golden retriever sitting at the feet of a man using a machine much like a court reporter's.  Sitting 20 feet and 10 students apart, we never spoke.  Later, in a junior-level class, I met the man, sat next to him in fact, and we discussed his dog guide .  He had acquired his dog shortly before enrolling in college.  He had had a dog before, had it for many years, but it had "retired."  He complained bitterly (I thought then) about how many people endeavored to treat his dog as a pet, to get its attention during class, to break its training and attention to guide duties.  I moved to another seat.  I was too much of a dog lover, with a dog-as-pet focus, to resist adding to his legitimate complaints.

It was over a decade before I would have the opportunity to spend up-close time with an assistance animal again.  Molly is a German shepherd, medium-sized, and a little neurotic.  Molly "offices" most days in the space next to me at the ILRU Program.  She assists my coworker, who uses a wheelchair, by picking up things dropped and at times pulling her along.  Molly can fetch a dime from a tile floor and lay it gently and mostly dry in your hand.  I admit to being blown away by that ability.

I discussed my prior experience with my classmate's dog guide with the staff at the ILRU.  They enlightened me to the differences in service animals, assistance animals, dog guides, and therapeutic animals.  We discussed training intensity, appropriate breeds, and the use of animals as diverse as monkeys, snakes, pigs, and miniature horses in assisting individuals with disabilities.  While covering calls on the DLRP hotline, I received a number of animal related inquiries.  Generally, this required me to ask someone else to answer the caller's questions.  So I began the research central to this e-bulletin.

I include here, a hopefully helpful, short glossary detailing the different categories of animals that assist individuals with disabilities[1]:

Dog Guide, or Seeing Eye® Dog is a carefully trained dog that serves as a travel tool for persons with severe visual impairments or who are blind.  There is a trend to train miniature horses for this assistance task because of their long life span (20+ years in some cases).

Hearing, or Signal Dog is a dog who has been trained to alert a person with significant hearing loss or who is deaf when a sound, e.g., knocks on the door, occurs.

Service Dog/Animal is a dog, or other animal, that has been trained to assist a person who has a mobility or health impairment. Types of duties the dog may perform include carrying, fetching, opening doors, ringing doorbells, activating elevator buttons, steadying a person while walking, helping a person up after the person falls, etc. Service animals are sometimes generically called assistance animals.  Recently, Capuchin monkeys and miniature pot-bellied pigs have been trained to fulfill a variety of highly skilled service animal tasks.

SsigDog is a dog trained to assist a person with autism. The dog alerts the partner to distracting repetitive movements common among those with autism, allowing the person to stop the movement (e.g., hand flapping). A person with autism may have problems with sensory input and need the same support services that a dog might provide to a person who is blind or deaf.

Seizure Response Dog is a dog trained to assist a person with a seizure disorder.  How the dog serves the person depends on the person's needs. The dog may stand guard over the person during a seizure, or the dog may go for help. A few dogs have somehow learned to predict a seizure and warn the person in advance.

Therapy Animals are not legally defined by federal law, but some states have laws defining therapy animals. These animals provide people with therapeutic contact, but are not limited to working with people who have disabilities. They are usually the personal pets of their handlers (who may be therapists, physicians, rehabilitation professionals) and work with their handlers to provide services to others. Federal laws have no provisions for people to be accompanied by therapy animals in places of public accommodation that have "no pets" policies.Therapy animals usually are not service animals. 

Companion / Emotional Support Animals assist people with mental or emotional disabilities, who use the assistance of this type of animal to function independently.  This type of assistance animal has the most tenuous legal status, and as a concept it is hard, if not impossible, to differentiate them from the role of pet.

TRANSPORTATION & TRAVEL

Air Travel:

A recent incident this past November brought the issue of assistance animals and transportation to the nation's attention.  A US Airways passenger requested that her Vietnamese pot-bellied pig accompany her in first class on a cross country flight.  The passenger claimed that she had a heart condition so severe that she needed the pig's company to reduce her stress.  The pig was given a seat in first class free of charge.  The airline complained to the FAA that the pig acted wild, milled around the galley begging food, and tried to enter the cockpit.  FAA spokesman Jim Peters claims that the airline acted properly in boarding the animal as part of "...a legitimate request to  transport a qualified individual with a disability and her service animal."  Evidencing a less than satisfied attitude with the FAA s findings, US Airways spokesman Dave Castelvetter claims that although they consider this particular matter closed, US Airways is setting in place new measures that will avoid a reoccurrence of what the carrier views as an abuse of the law[2].

So what is the law here?  The Air Carrier Access Act of 1986[3] specifically addresses service animals.  It provides that air carriers will accept an animal as a service animal with any credible written documentation, presence of harnesses, or credible verbal assurances of the qualified person with a disability.  The carrier shall further permit the service animal to accompany the person with a disability in their seat unless such blocks an emergency exit.  It further requires the airline to reassign the individual with a disability to another seat if that is necessary to facilitate the presence of the service animal[4]. The US Department of Transportation provides additional guidance into accessibility and air travel on their website[5].

Quarantine --- Travel in US & Abroad: 

Until recently, travelers with service animals entering Hawaii had to leave that animal in quarantine for 120 days (as of May of 1997, this was reduced to 30 days[6]) in accordance with state agriculture codes regarding rabies prevention[7].  This made traveling for business and pleasure to Hawaii with a service animal all but impossible, and made travelling to the mainland from Hawaii with a service animal an unthinkable notion for Hawaiians seeking to leave the island state. 

The DOJ intervened to challenge the quarantine under the ADA, and reached a settlement agreement with the parties. Under the agreement, Hawaii agreed to establish regulations to permit dog guides with proper documentation and testing to enter the state immediately upon arrival. Under new regulations adopted by Hawaii, a dog guide owner is required to demonstrate that the dog is free of rabies through documentation of rabies vaccinations and serological testing. The owner must also have a certification of training from a recognized dog guide school[8]. 

The settlement has not been met with total joy, as it narrowly defines the class of animals that are excluded from the quarantine as dog guides seemingly excluding other service animals, and requires that they be trained at a recognized dog guide school. 

When traveling overseas, the service animal/human team may have fewer problems.  The State department has produced a guide detailing access policies for animals into most countries[9] and encourages the overseas traveler to check with an embassy or consular office stateside before traveling, and to be careful in selecting lodging accommodations.

We did Planes & what about Trains and Automobiles?

The ADA also has force where assistance animals travel overland.  As detailed in a 1997 settlement agreement[10], the Arizona Shuttle Service (a fixed-route short distance shuttle bus service between Tucson and Phoenix) had a policy that allowed only "seeing eye dogs" to accompany a vision-impaired passenger aboard the shuttle bus, and denied an individual who used a wheelchair and the services of an assistance animal permission to board.  The ADA defines service animals as "...any dog guide, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. "  The ADA essentially requires that the person be disabled to be covered, and that the animal have some particular training.  No certification of a training or specified course of training is required[11].  The agreement indicated that the shuttle service was in violation, was a covered entity under Title III, and thus was required to, "make reasonable modification in policies, practices, or procedures, to permit the use of a service animal by people with disabilities[12].   Recent agreements have also been reached with rental car companies that had refused to rent their vehicles to travelers using service animals[13].

Additionally, the ADA provides (with regard to buses, taxis, trains and other forms of conveyance and supporting facilities such as depots, train and airport terminals), that [n]o entity shall discriminate against an individual with a disability in connection with the provision of transportation service . . . an entity shall not, on the basis of disability, deny to any individual with a disability the opportunity to use the entity's transportation service for the general public, if the individual is capable of using that service[14].   Included in the ADA regulations is the right of a person traveling with a service animal to have equal access to public transportation accommodations.  Public and private entities providing public transportation & shall permit service animals to accompany individuals with disabilities in vehicles and facilities[15]. 

ON A RELATED NOTE: PUBLIC ACCOMMODATIONS

Lodging & Other Places of Public Accommodations:

Hotels and motels clearly are anticipated arenas for the protection of the ADA, as are all places of public accommodation.  These temporary lodging facilities are required to allow individuals with disabilities to use their facilities with their service animals and to modify any policy or practice in place that prohibits the presence of pets on their premises[16]. The US Department of Justice has stated that, "[g]enerally, a public accommodation shall modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability." It is intended that the broadest feasible access to be provided to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes. The section also acknowledges, however, that, in rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, advantages, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized[17].

So, in what circumstances could service animals be excluded?  A recent case detailed that the assistance dogs could accompany their partners on a tour of the Shiner Bock Brewery, even in the presence of open vats of beer meant for distribution[18].  A not-so-recent case, Pool v. Riverside Health Services, Inc.[19], suggests that there is a high legal hurdle to jump in order to exclude service animals in places of public accommodation.  The case was initially brought under the ADA, §504, and the Kansas Act Against Discrimination.  It was dismissed after a summary judgment, which provided that the ADA did &not create a blanket absolute right of access for all assistance dogs, and that the hospital s policy was based on a &scientific assessment of the risks associated with contamination and infection control[20].

Housing

The most important federal law impacting housing and service animals is the Fair Housing Amendments Act of 1988[21].  This statute generally states that fair housing is to be provided, according to constitutional restrictions, throughout the United States. The Act's prohibition against discrimination in housing has great impact where it involves the issue of service animals for the disabled.  The Act may be used to prohibit a person from refusing to sell or rent to a person who needs a companion animal in his or her home for reasons of mental or physical health. A landlord is required to make "reasonable accommodations" in rules, policies, practices, or services when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.

The provision prohibiting discrimination against persons with disabilities may give broader rights for tenants to live with companion animals than may be readily apparent.  It is important to note that the fact that the lease on a rental unit is not in the name of the person with a disability does not affect the right of a person living in the unit to keep a companion animal. The law is applied to the person renting the unit and any persons legally living in the dwelling or intending to live in the dwelling after it is rented. The FHA applies to nearly all housing, whether the dwelling is for sale or rent. Two categories of housing that do not fall under the coverage of the Act are buildings with four or fewer units if the landlord lives in one of the units, and units belonging to private owners who own fewer than three single family houses or rent such units, who do not use a real estate broker or agent in leasing their units, and who do not post discriminatory notices or advertisements[22].

The Housing & Urban-Rural Recovery Act of 1983[23] protects the right of tenants in federally assisted housing for the elderly or persons with disabilities to have a pet, and further provides that the landlord is entitled to charge a deposit for that pet to cover any resulting damage to the property. However, if a pet is more properly characterized as a "service animal," the tenant should be exempt from the deposit[24]. 

Few courts have addressed the imposition of pet deposits on the vast majority of tenants who are not protected by the Housing and Urban-Rural Recovery Act.  The only case to specifically consider the legality of charging a pet deposit for an assistance animal involved a service dog belonging to a tenant with a physical disability.  In HUD v. Purkett, a HUD administrative law judge issued an injunction barring the owner and manager of an apartment complex from charging a tenant a deposit for her service dog. It could be argued that a landlord would be likewise prohibited from imposing such a deposit for an emotional support animal[25]. 

Employment: Toiling with Your Beast of Burden 

The general assumption is, from everyone I have spoken with and every website I ve reviewed, is that individuals with disabilities are allowed under Title I of the ADA to use your service dog in the workplace.  However, this issue is not specifically addressed in the law. Under Title I, discrimination includes failing to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee unless such  covered entity can demonstrate that accommodation would impose an undue hardship on the operations of the business of such covered entity[26].  Regulations somewhat clarify the types of reasonable accommodations which might impact service animals in the workplace. These regulations detail a sizable list of reasonable accommodations which require modifications, or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, and acquisition or modification of equipment or devices[27].  On point is a recent case that held for the individual with a disability and her dog in her workplace[28].  This case involved a medical facility again, but this time it was a doctor requesting that her service animal be allowed to assist her with mobility in the non-treatment areas of a veteran s hospital.  The court held that the hospital had discriminated against the doctor by failing to even consider her request for this particular reasonable accommodation.[29].

Conclusion:

One of the things I recall pulling me out of the stupor of class during my first weeks of law school was a speech by my legal research professor about the slavish and paranoid nature of attorneys and their relationship to the actual written law.  She quoted an old saw that claimed lawyers would salivate over, and wait with bated breath for a treatise on the law of dogs.  I hope this e-bulletin at least gets your interest and is of use, even if it does not evoke Pavlovian responses.

[1]. Largely adapted from: 

[2]. The following online articles detail the wildly varying accounts of the facts of this story, and the potential impact on disability law: , , , 

[3]. 49 USC 1374, amendment to the Federal Aviation Act.

[4]. 14 CFR 382 .

[5] See 

[6]. See 

[7]. See 

[8]. See 

[9]. See 

[10]. See Arizona Shuttle Service and DOJ Settlement Agreement, DOJ Press Release, No. 97-501, November 25, 1997, see also, 

[11]. 28 CFR 36.104

[12]. USC §12182(b)(2)(A)(ii), see also 28 CFR 36.302(c).

[13]. See US v. Budget Rent A Car settlement agreement: 

[14]. 49 CFR 37.5(a)(b)

[15]. 49 CFR 37.167(d)

[16]. 28 CFR 36.302(c)(1)

[17]. Id., see also 

[18]. Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 7 A.D. Cases 837, 22 A.D.D. 669, 10 NDLR P 119.

[19]. 12 A.D.D. 143, 7 NDLR P 118

[20]. Id.

[21]. 42 U.S.C. §§ 3601-3619.

[22].  See , a good discussion housing and assistance animals 

[23]. 12 USC 1701 r-1, generally.

[24]. Id.

[25]. See , another VERY good discussion of housing rights and assistance animals.

[26]. 42 USC 12112(b)(5)(A), see also .

[27].  29 CFR 1630.2(o)(2)(ii).

[28]. Branson v. West, 17 NDLR P 90.

[29]. 28 CFR 36.302(c)(1).

To subscribe to the Legal, General or HR e-bulletin or to ask a question or give a comment, please send an e-mail to mromero@ilru.org.

Welcome to the Legal E-Bulletin of the Southwest ADA Center.  The legal E-bulletin is distributed monthly via e-mail to subscribers interested in a comprehensive review of litigation that is occurring on a national and regional level with regard to the Americans with Disabilities Act and other disability related laws.  The bulletin's intent is to provide technical assistance and information on the litigation that is shaping the meaning of the ADA and other laws. 

The mission of the DLRP is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA.  NIDRR is not an enforcement agency. 

Project staff are also available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions. All questions will be answered confidentially. 

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

To unsubscribe to the legal E-bulletin, or to subscribe to the general or HR E-bulletin, to ask a question or give a comment, please send an E-mail to swdbtac@ilru.org.  All questions are answered confidentially.

You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Southwest ADA Center at ILRU. We would greatly appreciate receiving a copy of your use of our material. Please send to:

Southwest ADA Center
2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
713-520-5785 (fax)
swdbtac@ilru.org

 

 

 

 

 

 

 

 

 

contact us: DBTAC Southwest ADA Center
800-949-4232 or 713-520-0232 v/tty
© DBTAC Southwest ADA Center , All rights reserved