What is Discrimination Based on Use of a Service Dog?

What is Discrimination Based on Use of a Service Dog?

What is Discrimination Based on Use of a Service Dog?

Regardless of the definition of “service” or “assistance” animal under Oregon or other state law, the Americans with Disabilities Act (“ADA”) prohibits disability-based discrimination by employers, public entities, and public accommodations and creates a cause of action for persons subjected to discrimination based on disability. One form of discrimination is a denial of a person with disability’s access to a place that is otherwise open to the public based on his or her use of a service dog.

The ADA seeks to provide “the broadest feasible access . . . to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes.”1 “The ADA is basically a non-discrimination law that is divided into five titles, each of which governs a particular entity or activity: Title I applies to employment; Title II to state and local public services and transportation; Title III to privately owned public accommodations and commercial facilities; Title IV to telecommunications; and Title V to miscellaneous issues, including how the ADA applies to the states and Congress, coercion, retaliation, and technical assistance.”2

ADA Title II, 42 U.S.C. § 12131, requires that reasonable modifications be made in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration in the program would result. “Public entities” include state or local governments and any of their departments, agencies, or instrumentalities. For example, a city office building would be required to make an exception to a rule prohibiting animals in public areas to admit guide dogs and other service animals assisting individuals with disabilities.

ADA Title III, 42 U.S.C. § 12182, covers businesses and nonprofit service providers that are public accommodations. A “public accommodation” is generally “a facility operated by a private entity whose operations affect commerce . . . .”3 The regulations give a broad range of examples of private entities, including restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors’ offices, homeless shelters, transportation depots, zoos, funeral homes, daycare centers, stadiums, and fitness clubs.

Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment and require reasonable modifications to policies, practices, and procedures. The regulations implementing title III specifically require public accommodations to “modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.”4

Many times the issue in potential cases is not whether there is a disability as the ADA defines that term. It is whether the animal involved is a “service animal” within the ADA’s meaning. 28 C.F.R. § 36.104 defines a “service animal” as a “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 2010 revised requirements, only dogs and miniature horses are recognized as service animals under titles II and III. “Other species of animals, whether wild or domestic, trained or untrained, are not service animals . . .” for ADA purposes.5

“[U]nless the animal is individually trained to do something that qualifies as work or a task, the animal is a pet or support animal and does not qualify for coverage as a service animal [under the ADA]. A pet or support animal may be able to discern that the handler is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.”6 Thus, emotional support animals, comfort animals, and therapy dogs are not considered service animals under Title II and Title III of the ADA. Such animals may be entitled to protection in the housing context and may be entitled to admission to the workplace as an accommodation in the employment context. Unfortunately, individuals with disabilities who have certain legal rights to use certain animals may assume incorrectly that their animals also qualify under Title III of the ADA. This will not be so unless the animal satisfies the training and work/task requirements.

The ADA does not provide any training criteria, requirements, or minimum standards for trained service animals. The animal does need training, but the training does not need to be formal and the animal does not need to be certified. Similarly, “there is no requirement regarding the type or amount of work a service animal must provide for the disabled person. Instead, the relevant question is whether the animal helps the disabled person perform tasks to ameliorate the ADA disability.”7 Thus, whatever the work performed by the service animal, it will likely satisfy ADA requirements if it relates directly to the disability.

Examples of such work or tasks include ones with which most of us are well familiar, such as assisting individuals who are blind or have low vision with navigation and other tasks or alerting individuals who are hearing impaired to the presence of people or sounds. But service dog tasks also include less familiar things like providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting behaviors.

The latter tasks performed by psychiatric and/or psychological service dogs can lead to confusion of such dogs with assistive animals providing emotional support. The distinction is in whether the animal’s ameliorative effect is the result of performance or mere presence, without more. The crime deterrent of an animal’s presence, for example, and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for ADA purposes.

If a service dog assists you or a loved one and you believe that discrimination has occurred, contact an experienced Oregon animal law attorney. While service dog discrimination cases can be complex, there are a number of possible remedies that may resolve the problem.

1. 28 C.F.R. § 26 App. B (1991).
2. A Comparative Study: Service Animals and Emotional Support Animals under the Fair Housing Act and the Americans with Disabilities Act & An Overview of Assistance Animal Laws of Select States, 15 Univ. of Iowa Clinical Law Program (2010).
3. 28 C.F.R. § 36.104.
4. 28 C.F.R. § 36.302 (c).
5. 28 C.F.R. § 104.
6. Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56,267 (Sept. 15, 2010).
7. Vaughn v. Rent-A-Center, Inc., No. 2:06-cv-1027 (S.D. Ohio, Mar. 16, 2009) (order denying defendant’s motion for summary judgment).