DON'T BE DISTRACTED BY THE PEACOCK TRYING TO BOARD AN AIRPLANE: WHY EMOTIONAL SUPPORT ANIMALS ARE SERVICE ANIMALS AND SHOULD BE REGULATED IN THE SAME MANNER.

• Author: Foster, Amanda M.

1. INTRODUCTION

   Half of all Americans are diagnosed with a mental illness or disorder at some point in their lifetime. (1) "Mental illnesses, such as depression, are the third most common cause of hospitalization in the United States for those aged 18-44 years old." (2) In the United States, one out of ten women experience symptoms of depression. (3) Further, anxiety disorders are the most prevalent mental illness in the United States. (4)

   Despite the prevalence of mental illness, there is a societal backlash against emotional support animals whose role is to help those with mental health issues. (5) Emotional support animals are used as therapy animals. (6) "These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities." (7) They are not considered service animals under the Americans with Disabilities Act ("ADA"), (8) which defines them as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability." (9) Because Americans tend to treat mental health issues differently than physical, visible disabilities, (10) lawmakers continue to treat emotional support animals differently than service animals. (11) This different treatment is unwarranted because whether an animal is serving as a guide for someone who is visually impaired, or relieving an individual of symptoms associated with anxiety or depression, all of these things should be considered work or performing tasks. This would make service animals and emotional support animals equal players with equal protections under the ADA. Therefore, this Article suggests that the definition of service animal needs to be broadened under the ADA to include emotional support animals to provide equal treatment for individuals afflicted by all disabilities - both visible and invisible. The fact that some federal laws like the Fair Housing Act ("FHA") (12) and the Air Carrier Access Act ("ACAA") (13) provide for broader definitions of service animals that include emotional support animals, does not sufficiently protect people with mental health issues because those laws only provide protections in the limited housing and air travel contexts and not the context of meaningfully participating in the general public under the ADA. (14) Individuals with disabilities should not have to rely on the tenuous provisions of peripheral legislation that has been the recent subject of debate. (15) Protections must be grounded in the ADA to uphold the letter and spirit of the law.

   Section II of this Article provides factual background and analyzes recent incidents reported in the news about emotional support animals on mass transit, and how stereotyped reactions to them reflect mental health stigma.

   Section III analyzes the practices and recommendations concerning emotional support animals in the field of psychology. Psychologists recognize the importance of emotional support animals while also recognizing the need for limits and safeguards to avoid fraud. (16)

   Section IV of this Article provides the legal background on this issue and describes the current controversy over how to treat service animals and emotional support animals under federal law. Specifically, both the FHA and ACAA provide for broader definitions of service animals than the ADA. (17) These laws, however, do not provide a comprehensive solution for protecting people with mental impairments.

   The definition of service animal has been the subject of recent legislative action. (18) On April 24, 2018, Senator Richard Burr (R-NC) introduced a bill to amend title 49 of the United States Code, which would make changes to the ACAA such as only allowing service animals, as defined by the ADA, to be uncaged onboard aircrafts, thereby requiring service animal behavior training for air carrier passengers and creating a criminal penalty for fraudulently claiming that an animal is a service animal used for disability needs. (19) In a press release, while discussing the need to balance those who use service animals against those who use emotional support animals, Senator Burr stated, "[o]ne doesn't have to look far to find rampant cases of abuse where even emotional support kangaroos have been allowed to fly on planes to the detriment of fellow travelers and handlers of trained service animals." (20) The bill has been read twice and referred to the Committee on Commerce, Science, and Transportation. (21)

   Moreover, the Department of Transportation ("DOT") is currently seeking comment on amending the ACAA's regulation on the transportation of service animals. (22) The DOT wants to improve the ACAA's regulation to ensure nondiscriminatory access for individuals with disabilities to use their service animals onboard airlines while attempting to deter "fraudulent use of other animals not qualified as service animals" and prevent the use of "animals that are not trained to behave properly in the public." (23) Therefore, this Article's proposition to amend the definition of a service animal to include emotional support animals under the ADA is timely. Moreover, Senator Burr's bill and the DOT's consideration of redrafting the ACAA regulation of service animals indicate that if the ADA does not provide for a broader definition of service animals, then the current protections under the ACAA afforded to people who use emotional support animals may disappear.

   Section V demonstrates that poor regulation leads to legal absurdities. Section Five of this Article therefore proposes ways to fix this ineffective regulation and treat mental and physical health equally by amending the ADA.

2. THE PITFALLS OF INCOMPLETE LEGAL REGULATION REGARDING EMOTIONAL SUPPORT ANIMAL ACCOMMODATIONS

   Advocating for change regarding the ADA's definition of service animals is not a new topic. (24) Nonetheless, there remains a need to include emotional support animals as service animals, but with careful definition of the term. This section provides examples from 2018 related to emotional support animals and airlines, and 2015 related to emotional support animals and malls. Because transportation companies, such as airlines, can have different policies about transporting emotional support animals, (25) passengers are left to rely on their employees to explain and enforce these varying policies. (26) The same is true for places of public accommodation, where users of service animals and emotional support animals must rely on the employees' understanding of whether or not animals are allowed on the premises. (27) Therefore, if the ADA's definition for service animal also included emotional support animal, and that definition provided guidance as to which types of animals are covered, then these situations would not occur, or would occur less often due to more clarity. Increased clarity would also address the concerns of advocates for amending the definition in the ACAA and FHA by making it harder for abuses or fraud to occur. (28) The ADA's right of individual enforcement (29) also makes amending the definition in the ADA a stronger remedy for people with disabilities than amending the definition elsewhere.

   1. Leave Your Peacocks at Home

      Male peacocks have a thirty-five to fifty-inch body and a? sixty-inch train of feathers. (30) They are known to have a "loud, shrill cry that can aggravate neighbors." (31) Peacocks tend to chase other creatures, including humans. (32) They are known to walk up and investigate people, circle them, and peck and screech at them. (33)

      On January 28, 2018, a woman arrived at Newark Liberty International Airport in New Jersey with what she claimed was her "emotional support peacock." (34) The New York City-based photographer and performance artist, named Ventiko, had purchased a United Airlines ticket for her peacock, Dexter, to fly with her to Los Angeles. (35) Dexter was not allowed to board the United Airlines flight. (36) His Instagram account indicated that, instead, he made the trip to Los Angeles via automobile. (37)

      A United Airlines spokesperson provided the following statement: "The animal did not meet guidelines for a number of reasons, including its size and weight.... We explained this to the customer on three separate occasions before they arrived at the airport." (38)

      In addition to the airport, Dexter has been seen in the New York City subway. (39)

      In March, a story entitled, After a Brush with Fame, Dexter, the Pet Peacock Who Was Refused a Seat on United, Has Moved On, was published in the Los Angeles Times. (40) In the article, the author wrote: "[Ventiko and Dexter's] story set off a debate about emotional support animals: Where is the line? Who gets to draw it?" (41) Further, the article chronicles the story of how Ventiko and Dexter met. (42) Ventiko was not looking for an emotional support animal. (43) Instead, she was searching Craigslist ads as she prepared for Art Basel in Miami Beach, an annual international art fair. (44) She wanted to add birds to her display. (45) When she discovered that canaries were expensive, she opted to choose two peafowl--a male and a female--for only $200. (46) After the show was over, Dexter and the female, Etta, went to live in North Port, Florida. (47) They mated, and had four peachicks. (48) Unfortunately, Etta and the peachicks were eaten by a predator, which caused Dexter to grieve and begin to bite. (49) Instead of letting Dexter's new owner put him on the side of the road, Ventiko flew Dexter to Brooklyn, New York, in a dog kennel. (50) Ventiko considered options for Dexter's future home including the Dominican Republic, but that country prohibits the importation of birds, and a family in rural Long Island who lived on a farm. (51) Dexter lived on the Long Island farm for a week and a half, but he did not do well with humans, other than Ventiko. (52) When he was not...