Brief No. 15 EMPLOYMENT November 2010 Legal Briefings Prepared by: Sarah Price Equip for Equality 1 Service Animals Under the ADA This Legal Briefing will discuss the use service animals under the Americans with Disabilities Act (“ADA”) in public accommodations2 under Title III and as applied to the services, activities, and programs of public entities under Title II.3 4 This brief analyzes relevant statutory language, federal regulations, case law, and settlement agreements set forth by the U.S. Department of Justice (DOJ), the agency authorized by Congress to enforce Titles II and III of the ADA, draft the ADA’s corresponding administrative regulations, investigate complaints, initiate and mediate complaints, and monitor settlement agreements.5 Note that challenges brought under the ADA regarding service animals are highly fact specific, often requiring a case-by-case inquiry into the details of the individual’s needs as a person with a disability, the services that an animal provides, the defendant’s policies, practices, or procedures that give to rise to the alleged discrimination, and any defenses raised by the defendant. The ADA and court cases are clear that policies and practices must be modified to allow individuals with disabilities to be accompanied by their service animals. The greatest area of dispute arises as to whether an animal is a service animal and whether a health and safety risk is present. The outcomes of such cases undoubtedly turn on the particular facts presented in each case WHAT IS A SERVICE ANIMAL? Under the ADA, a “service animal” is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Under the new DOJ regulations, “other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purpose of this definition.” 28 C.F.R. § 36.104 and 28 C.F.R. § 35.104 (emphasis added). Service Animals Under the ADA tasks; The only animal that can qualify as a  Alerting individuals who are deaf or “service animal” under the ADA, therefore, hard of hearing to the presence of people is a dog. However, the ADA also requires or sounds; that reasonable accommodations be  Providing non-violent protection or made to permit the use of a miniature rescue work; horse by an individual with a disability so  Pulling a wheelchair; long as it has been “individually trained to  Assisting an individual during a do work or perform tasks for the benefit of seizure; the individual with a disability.” 28 CFR §  Alerting individuals to the presence of 36.302(c)(9)(i) and 28 C.F.R. § 35.136(i) allergens; S (A). In order to determine whether  Retrieving items such as medicine or e reasonable accommodation can be made the telephone; r to allow miniature horses in a facility, v  Providing physical support and entities must consider the following four i assistance with balance and stability to c factors: e individuals with mobility disabilities; and,  Helping persons with psychiatric and A 1. The miniature horse’s type, size, and neurological disabilities by preventing or n weight and whether the facility can interrupting impulsive or destructive i accommodate these features; m behaviors. 28 C.F.R. § 36.104; 28 C.F.R. 2. Whether the handler has sufficient § 35.104. a control; l 3. Whether the miniature horse is s housebroken; and U ARE EMOTIONAL SUPPORT or 4. Whether the miniature horse’s n “COMFORT” ANIMALS SERVICE ANI- presence in a specific facility d MALS? compromises the legitimate safety e requirements that are necessary for r safe operation. Id. t h The provision of emotional support, e WHAT TYPE OF WORK OR TASKS CAN well-being, comfort, or companionship is A A SERVICE ANIMAL DO? not the type of “work or tasks” considered D in the ADA’s definition of service animal.7 A 28 C.F.R. § 36.104; 28 C.F.R. § 35.104. However, if an animal was individually The work or tasks performed by a service trained to perform work or tasks for the animal must directly relate to the handler’s benefit of an individual with a disability in disability. However, the ADA does not addition to providing comfort or support, it limit the kind of work or tasks that can be may still be considered a “service animal.” performed.6 Examples include but are not limited to: WHO IS ENTITLED TO USE A SERVICE  Assisting individuals who are blind or ANIMAL UNDER THE ADA? have low vision with navigation and other Brief No. 15 2 November 2010 Service Animals Under the ADA The ADA authorizes the use of service for herself without assistance from the animals for the benefit of individuals with horse. A primary fact for the court was disabilities. While the ADA does not limit that the girl did not use any other device to the type of disability one must have in assist her in walking, standing, or order to use a service animal, there must otherwise moving or traveling outside of be a direct link between the task an her residence where the horse never left. animal performs and the person with a Furthermore, the girl’s treating physician disability. The ADA defines disability to testified that he would not recommend the include a “physical or mental impairment use of the horse as a service animal and that substantially limits one or more major stated she did not need one. life activities of such individual.” 42 U.S.C. S § 12102(1)(A).8 After finding that the girl was not disabled, e the court held that the miniature horse r v In Access Now, Inc. v. Town of Jasper, was not a service animal because it did i 268 F. Supp. 2d 973 (E.D. Tenn. 2003), a not assist and perform tasks for the c Tennessee district court determined that a benefit of a person with a disability.9 10 e nine-year-old girl with spina bifida and A hydrocephalus did not have a disability In Proffer v. Columbia Tower, 1999 WL n under the ADA. The girl’s family had 33798637 (S.D. Cal. 1999), a California i m previously requested a reasonable district court found that a landlord did not modification to the town ordinance that violate the ADA because the plaintiff a prohibited animals within 1000 feet of any tenant could not demonstrate she was l s residence without a permit from the town discriminated against by reason of her U health officer. Specifically, the family own disability. Although the tenant is an requested a permit to keep a miniature individual with paraplegia and uses a n horse at their residence, describing the service dog for herself, her lawsuit was d horse as a service animal that helped the based on her landlord’s refusal to allow e r girl stand, walk, and maintain her balance, additional dogs in her apartment that she t and that also picked up unspecified hoped to train for other individuals with h objects off the floor for her. After the town disabilities. The landlord permitted the e denied issuance of the permit, and the tenant to have her own service dog, but A family was declared guilty of violating the otherwise prohibited her from having the D town’s municipal ordinance, the family additional dogs, unless her own disability filed suit in federal court pursuant to Title II required her to have another service A of the ADA. The issue in dispute was animal. The district court agreed with the whether the girl had a disability. The landlord, finding no ADA violation since family contended that she was the additional dogs were not trained to substantially limited in three major life perform tasks for the tenant’s benefit. activities: walking, standing, and caring for herself. However, the district court found that the girl did not have an ADA disability WHAT QUESTIONS CAN ENTITIES ASK because the majority of the evidence TO DETERMINE WHETHER AN ANIMAL demonstrated that the girl could IS A SERVICE ANIMAL? adequately walk, stand, balance, and care Brief No. 15 3 November 2010 Service Animals Under the ADA According to the DOJ regulations, entities the same policy upheld in Grill. In this may ask two questions: (1) whether an case, the Plaintiff appeared at a Costco animal is required because of a disability, store with her husband and a puppy and (2) what task or work the animal has wearing a vest that said “service animal in been trained to perform. 28 C.F.R. training.” While shopping, she began to §36.302(6); 28 C.F.R. §35.136(f). They carry her dog, Dilo, in her arms when a cannot otherwise ask about the nature or store manager approached her and asked extent of an individual’s disability. Id. on whose behalf the dog acted, as well as Furthermore, generally an entity may not what tasks the dog performed. Plaintiff ask these questions when it is “readily said the dog was hers and that he alerted apparent that an animal is trained to do her to spells. The company’s lawyer sent S work or perform tasks for an individual a follow up letter asking Plaintiff to provide e with a disability.” Id. For an example, the further information about the dog’s training r v type of task or work an animal has been and the tasks it performs. Costco never i trained to perform might be “readily asked Plaintiff to state her disability, or c apparent” when the animal is observed demanded proof of training. However, e performing such task. Id. Plaintiff argued that Costco’s questioning A constituted harassment. The Court noted n Although the regulations generally limit the that, even though it was “highly i m scope of permissible questioning, courts questionable whether [the dog in question] have generally upheld additional was a service animal,” the manner in a questioning if it serves to clarify whether which such questions are asked could in l s an animal is a service animal and/or if and of itself violate the ADA. However, U there is a reasonable suspicion that the the Court determined that, in this case, animal is not a service animal.11 Costco did not violate the ADA, and that n the inquiries were reasonable to seek d In Grill v. Costco Wholesale Corp., 312 F. clarification from Plaintiff. e r Supp. 2d 1349 (W.D. Wash. 2004), a t Washington district court upheld a private In Brown v. Cowlitz, 2009 WL 4824010 h membership club’s written policy that (W.D. Wash. Dec. 9, 2009), e required store employees to first look for reconsideration denied by 2009 WL A visible identification that the animal was a 5214328 (W.D. Wash. Dec. 28, 2009), D service animal and, if no identification motion for relief from judgment denied by existed, to ask what task or function the 2010 WL 1608876 (W.D. Wash. Apr. 19, A animal performed that its owner could not 2010), a Plaintiff brought a lawsuit against otherwise perform. The club’s policy a judge who was presiding over a otherwise prohibited employees from separate matter Plaintiff was involved in. asking specific questions about the Although the judge had previously allowed person’s disability. Plaintiff to bring her dog to court, he later requested that Plaintiff provide proof of In Dilorenzo v. Costco Wholesale Corp., disability and her need for a service 515 F.Supp.2d 1187 (W.D. Wash. 2007), animal. A federal district court in the Washington district court discussed Washington found these inquiries were Brief No. 15 4 November 2010 Service Animals Under the ADA permissible in light of “number of factors Policies and practices that require proof of that led to legitimate suspicions” that the certification or similar documentation have dog was not a service animal. The judge been found to violate the ADA. In Green had noted that the dog had a significant v. Housing Authority of Clackamas odor such that individuals left the County, 994 F. Supp. 1253 (D. Or. 1998), courtroom to avoid it, and that the dog an Oregon district court found that the was not controlled properly. county housing authority violated Title II of the ADA, the Fair Housing Amendments Courts have refused to find an ADA Act and the Rehabilitation Act of 197312 violation where the individual refuses to after the housing authority threatened to respond to legitimate inquiries. For evict a tenant who was deaf for having a S example, in Thompson v. Dover Downs, dog despite the tenant’s explanation that e Inc., 887 A.2d 458 (Del. Super. Ct. 2005), the dog was a service animal. The tenant r v the Delaware Supreme Court held that a had previously filed a request for a waiver i business could exclude a service animal if of the housing authority’s blanket “no pets” c the owner refused to answer questions rule explaining that the dog was a service e about its training. Although this case was animal that alerted the tenant to several A brought under Delaware state law, the sounds such as door knocks, the smoke n court stated that the state law and the detector, a ringing telephone, and cars i m ADA’s provisions regarding service arriving in the driveway. Despite the animals were essentially the same. Also, tenant’s claim that the dog was trained a the court relied on the fact that the professionally as well as individually in the l s business owner had contacted the tenant’s residence, the housing authority U Department of Justice’s ADA information claimed the dog was not a service animal line and confirmed that while the business because the tenant could not produce any n owner could not ask the individual about verification or certification that the dog d his disability, he was permitted to ask was trained as a hearing assistance e r about the dog’s training. animal by a certified trainer or other t “highly skilled individual.” The Court held h that the housing authority had no CAN AN ENTITY REQUIRE AN e INDIVIDUAL TO PROVIDE independent authority to determine A whether the dog was a service animal as CERTIFICATION THAT THEIR ANIMAL D long as the dog was individually trained for IS A SERVICE ANIMAL AND NOT A the benefit of a person with a disability. A PET? However, courts have required individuals to provide some evidence of training in No. An entity cannot require order to demonstrate that their animal documentation (e.g. proof of certification, meets the “service animal” definition and training, or licensure) that the animal is a to distinguish their service animal from an service animal. 28 C.F.R. §36.302(c)(6); ordinary pet. 28 C.F.R. §35.136(f). In Timberlane Mobile Home Park v. Brief No. 15 5 November 2010 Service Animals Under the ADA Washington State Human Rights help her retrieve food if desired. Plaintiff Commission, 122 Wash. App. 896, 95 said that Bun was a service animal and P.3d 1288 (Wash. App. 2004), a alerted her to taking medications. A Washington State appellate court dispute followed, and the police arrived. reversed a decision of the state’s human Plaintiff was arrested for criminal trespass, rights commission which had previously handcuffed, and ultimately separated from found that a mobile home park Bun. She later filed a lawsuit seeking two discriminated against a resident by million dollars in damages. Her claim expelling her from a trailer park because against the convenience store was she used a service animal. This case was dismissed because there are no damages brought under a Washington state law allowed under Title III of the ADA. As to S that, similar to the ADA, required that a Plaintiff’s other claim, that the police failed e service animal be “trained for the purpose to enforce her right to bring a service dog r v of assisting or accommodating a disabled into a public accommodation, the court i person’s sensory, mental, or physical dismissed her claim, stating that Plaintiff c disability.” The appellate court determined failed to demonstrate that her dog was e that the Plaintiff’s dog, Spicey, was not so trained to do any work or tasks. A trained. Spicey had alerted people for Defendant City argued that Plaintiff n help when Plaintiff had a migraine by needed to show evidence of personal i m “freaking out” and running, jumping, training, outside obedience training, and barking, scratching or pulling one’s leg. actual observance of the animal’s learned a She started doing this when she was behavior. The court disagreed with l s seven to nine months old. After finding an Defendant that documented evidence was U individual to help, Spicey would then required but did agree that there “must be quietly watch the individual help Plaintiff some evidence to set a service animal n and then would be called a “good girl” and apart from an ordinary pet.” Baugher at d maybe given a treat. The Court found 5. While Plaintiff stated that Bun’s e r Spicey to be indistinguishable from family presence reminded her to take her t pet. medication or stay focused, and that Bun h provided her “cues” to take her e In Baugher v. City of Ellensburgh, WA, medication, she did not explain further A 2007 WL 858627 (E.D. Wash. 2007) a what cues Bun provided, nor how Bun D federal district court determined that an was trained to provide these cues. The individual’s dog was not a service dog court deemed that Plaintiff needed to A because she failed to show her dog was demonstrate “something more than merely trained to do any work or tasks. Plaintiff being a presence that provides comfort, who has autism, panic attacks, a head companionship or interaction.” Id. injury, asthma, and is hard of hearing, filed a lawsuit against a convenience store and At least two federal courts have allowed the police department for violating the cases to continue despite a defendant’s ADA. While at a convenience store, a motion for summary judgment or dismissal store clerk asked Plaintiff to keep her dog, when plaintiffs have offered some Bun, away from the food, but offered to evidence of training. Brief No. 15 6 November 2010 Service Animals Under the ADA In Vaughn v. Rent-A-Center, 2009 WL anxiety, and sleep attacks. 723166 (S.D. Ohio 2009), an individual with multiple sclerosis and spinal-chord TO WHAT EXTENT ARE COVERED injury filed a lawsuit against Rent-A- ENTITIES REQUIRED TO MODIFY Center for refusing him entry into the store THEIR “NO PETS” POLICIES, OR LIKE with his service dog, Hannibal, who he POLICIES, PRACTICES, AND alleged helped him walk and stand. An PROCEDURES TO ALLOW THE USE OF Ohio federal district court denied the SERVICE ANIMALS? defendant’s motion to dismiss finding that a reasonable jury could find that Hannibal was a “service dog.” Citing to Baugher, S Rent-A-Center filed a motion for summary In General e judgment arguing that there was no Covered entities must modify policies, r v evidence Hannibal was individually practices, or procedures to permit the use i trained. The court, however, found the of a service animal by an individual with a c instant case distinguishable and denied disability in any area open to the general e Rent-A-Center’s motion. Specifically, public, unless the entity can demonstrate A Plaintiff provided testimony that he took a (1) that making such modifications would n class on service animal training and that fundamentally alter the nature of the i m he individually trained Hannibal. He entity’s goods, services, facilities, further explained that Hannibal was privileges, advantages, or a specifically trained to help him keep his accommodations, (2) the safe operation of l s balance, navigate uneven ground and the entity would be jeopardized, or (3) U stairs, pick up things, and help him in and such modifications would result in an out of chairs, cars, beds, and showers. undue financial or administrative burden. n 28 C.F.R. §§ 35.130(b)(7), 35.136, 35.150 d In Miller v. Ladd, 2010 WL 2867808 (N.D. (a)(3), 35.164, 36.301(b), 36.302 (c)(1), e r Ca.l 2010), a California federal district and 36.303(a). DOJ commentary t court denied a defendant restaurant’s suggests that Congress intended the ADA h motion for summary judgment, finding that to allow service animals the “broadest e Plaintiff had presented enough evidence feasible access” to public A to create a genuine issue as to whether accommodations and public entities and D her dog, Sati, was a service animal. to avoid unnecessarily separating service Specifically in question was whether Sati animals from their owners. 28 C.F.R. pt. A had been trained to help Plaintiff, an 36, App. C. individual with an anxiety disorder and post-traumatic stress disorder. Plaintiff Covered entities that have blanket policies provided testimony that she researched or practices that exclude service animals service animals, identified a shelter dog may be subjected to court orders or with shelter staff that was most suited for settlement agreements requiring service animal work, trained Sati modification of the relevant policy or individually as well as with professional practice. For example, following a help, and trained Sati to alert her to panic, complaint filed by three individuals who Brief No. 15 7 November 2010 Service Animals Under the ADA are blind after they were refused airport Service animals do not have unfettered shuttle service unless their guide dogs access to public accommodations and were restrained in kennels, Budget Rent A government entities. Rather, there are Car Systems modified its car rental limits that can be imposed when the policies to allow individuals with service animal is out of control, when disabilities to use service animals without health and safety risks are present, and being separated from them at any time. 13 when the presence of such animal may cause an undue burden or fundamental Businesses that have taken the initiative alteration. to modify their own policies and practices in effort to remedy past ADA violations S Animal is Out of Control or Not House may avoid court ordered injunctions and e other sanctions. For example, in Stan v. Broken r v Wal-Mart Stores, Inc., 111 F. Supp. 2d i 119 (N.D. N.Y. 2000), a shopper who is c legally blind filed suit against Wal-Mart A public accommodation may ask an e and Sam’s Club stores alleging the stores individual to remove a service animal from A violated the ADA when store employees the premises if the animal is out of control n challenged her as she tried entered the and the animal’s handler does not take i m stores with her guide dog, including one effective action to control it; or the animal incident where an employee asked the is not housebroken. 28 C.F.R. §36.302(c) a shopper about her disability. A New York (2)(i)-(ii); 28 C.F.R. §35.136(b)(1)-(2). If a l s district court found that the shopper was service animal is properly excluded for U unable to satisfy her request for injunctive these reasons, the individual must be relief to bar future harassment, which permitted to obtain goods, services or n required a showing of irreparable harm accommodations without the service d and a likelihood of future discrimination. animal. 28 C.F.R. §36.302(c)(3); 28 e r The New York district court found that C.F.R. §35.136(c). t while the shopper should not be subjected h to embarrassing and humiliating personal e questions about her disability, she could A not demonstrate a likelihood of future The Fundamental Alteration Defense D harassment because the stores had al- ready taken action to fix their policies and A practices in compliance with the ADA by Service animals may be excluded if the training their employees on service covered entity can demonstrate that the animals, placing signs at store entrances presence of such animal would that welcomed service animals, and fundamentally alter the nature of the implementing policies permitting service entity’s goods, services, facilities, animals as an exception to the stores’ privileges, advantages, or general “no pets” rule. accommodations. It is the entity’s burden to allege and prove the existence of a DEFENSES14 fundamental alteration. The outcome of Brief No. 15 8 November 2010 Service Animals Under the ADA such defense will depend on the distinct that demonstrated otherwise. Although no facts of each case. monetary damages are available for a violation of Title III of the ADA, the Ninth For example, a California district court Circuit ordered damages under California found that the California Center for the state law against the Center, and also Arts violated the ADA when it refused to against the Director of Center Sales & allow a patron with quadriplegia to Events and the house manager in their continue attending music performances individual capacities. with her service dog that had previously yipped or barked during the intermission In Johnson v. Gambrinus Company/ of two Center concerts. The district court Spoetzel Brewery, 116 F.3d 1052 (5th Cir. S ordered the Center to modify its “policies, 1997), the Fifth Circuit Court of Appeals16 e practices and procedures such that they affirmed the district court’s decision that a r v did not exclude a service animal who has brewery violated the ADA when it refused i made a noise on a previous occasion, to permit an individual who is blind to take c even if such behavior is disruptive, if the a public brewery tour with his guide dog. e noise was an intended to serve as a The Fifth Circuit also upheld the district A means of communication for the benefit of court’s order that the brewery modify its n the disabled owner or if the behavior policies to ensure that individuals with i m would otherwise be acceptable to the disabilities and their service animals have Center if engaged by humans.” The the “broadest feasible access” to the a Center appealed the district court’s order brewery tour consistent with the brewery’s l s and in Lentini v. California Center or the safe operation. The brewery argued that U Arts, Escondido, 370 F.3d 837 (9th Cir. permitting animals on the tour would 2004) the Ninth Circuit Court of Appeals15 f u ndamentally alter the nature of the tour n affirmed, finding it to be a reasonable and and that the Food, Drug, and Cosmetics d necessary accommodation under the Act prevented the brewery from modifying e r ADA. The Center argued that the its blanket “no animals” policy. The Fifth t modified policy would fundamentally alter Circuit disagreed holding that the Act did h the Center’s services because permitting not prevent the brewery from allowing e a dog to make noise may deter patrons guide dogs on at least part of the tour and A and artists from coming to the Center. that the risk of contamination posed by the D However, the Ninth Circuit stated that few foreseeable service animal visits was whether an accommodation causes a minimal, if not altogether unlikely or im- A fundamental alteration is an “intensively possible in certain locations within the fact-based inquiry” and the facts of this brewery. Finally, the Court affirmed an case showed that although the patron’s award of monetary damages under state service dog did yip or bark twice, no law that specifically prohibits businesses patron ever complained and the two from excluding individuals with disabilities incidents did not cause a significant because of their use of an assistance dog disturbance. The Center’s mere or other specified assistive devices. speculation of potential future disturbances was undercut by evidence Brief No. 15 9 November 2010 Service Animals Under the ADA The Direct Threat to Health and Safety animals to accompany their owners, then Defense these alternatives should be considered before a blanket exclusionary policy is implemented. Neither government entities nor public accommodations are required to permit In Crowder v. Kitagawa, 81 F.3d 1480 (9th access to their services, programs, and/or Cir. 1996), the Ninth Circuit Court of activities when an individual poses a direct Appeals found that, without reasonable threat to the health or safety of others. 28 modifications, the State of Hawaii’s C.F.R §36.208(a); 28 C.F.R. §35.139(a). 120-day quarantine on carnivorous A "direct threat" is a significant risk to the animals entering Hawaii, which was S health or safety of others that cannot be designed to prevent the importation of e eliminated by a modification of policies, rabies, violated Title II of the ADA. r v practices, or procedures, or by the Pursuant to Hawaii law, any person who i provision of auxiliary aids or services. 28 entered, visited or returned to Hawaii with c C.F.R. §36.104; 28 C.F.R. §35.104. In a dog, cat, or other carnivorous animal e determining whether a “direct threat” was required to have their animal A exists, an entity must make “an quarantined for 120 days upon entering n individualized assessment, based on t h e State. Upon written request, a person i m reasonable judgment that relies on current with a disability seeking to bring a service medical knowledge or on the best animal into Hawaii could stay in the State a available objective evidence, to ascertain: without cost for the duration of the l s the nature, duration, and severity of the quarantine period in the quarantine U risk; the probability that the potential injury station, a remote area within Hawaii. A will actually occur; and whether class of plaintiffs who were blind or had n reasonable modifications of policies, low vision alleged that this restriction d practices, or procedures or the provision denied them the ability to make e r of auxiliary aids will mitigate the risk.” 28 meaningful use of Hawaii’s services, t C.F.R §36.208(b); 28 C.F.R. §35.139(b) programs, and activities without their h guide dogs. The plaintiff class also e While a showing that health and safety will argued that separating the dogs from their A be jeopardized if an animal is present owners rendered the animals susceptible D could serve as a basis for excluding a to irretrievable loss of their training as service animal, allegations of safety risk service animals. The Ninth Circuit agreed, A must be based on actual risks rather than holding that reasonable modifications on mere speculation, stereotypes, or were necessary to avoid such generalizations about individuals with discrimination unless they would disabilities. 28 C.F.R §36.301(b); 28 fundamentally alter the nature of the C.F.R. §35.130(h). A perceived threat service, program, or activity. Because without evidentiary basis will not likely plaintiffs contended that there were more support exclusion. Moreover, if other effective means to prevent the importation alternatives exist that can alleviate health of rabies by guide dogs such as a vaccine and safety concerns while allowing service -based system, the Ninth Circuit sent the Brief No. 15 10 November 2010