Emotional Support Animal or Service Animal for Ada and Vermont's Public Accommodations Law Purposes: Does it Make a Difference?

• Jurisdiction: United States,Federal,Vermont
• Citation: Vol. 2006 No. 07
• Publication year: 2006

Vermont Bar Journal 2006.

July 2006 - #2. Emotional Support Animal or Service Animal for ADA and Vermont's Public Accommodations Law Purposes: Does It Make a Difference?

The Vermont Bar Journal

#166, Volume 32, No. 2

Summer 2006

Emotional Support Animal or Service Animal for ADA and Vermont's Public Accommodations Law Purposes: Does It Make a Difference?

by Beth A. Danon, Esq.

Introduction

Federal and Vermont anti-discrimination laws do not differentiate between physical and mental disabilities. The purpose of these laws is to eliminate discrimination of individuals with disabilities, whether physical or psychiatric in nature. While most of us are familiar with the use of seeing-eye dogs for those with vision impairments, service animals provide assistance in a variety of ways to persons who use wheelchairs, persons with hearing loss, the deaf, the elderly, and persons with medically-diagnosed psychiatric disabilities.

Increasingly, emotional support animals have been shown to be beneficial to persons with mental disabilities, such as depression.(fn1) Though unquestionably a potentially disabling condition in its own right, depression is also a major co-factor with, and/or side effect of, other medically-determined disabilities, such as Alzheimer's, and chronic conditions such as cancer. For instance, one study reported that persons living with AIDS who suffered from depression benefited from owning a pet.(fn2)

The question then becomes when is an emotional support animal also a service animal to an individual with a disability, which would require an exception to a no-pets policy in places of public accommodation as a reasonable accommodation?

Overview of Disability Access Law and Service Animals

Title III of the Americans with Disabilities Act of 1990 (the "ADA") establishes that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ... "(fn3) The ADA defines "discrimination" as, among other things, "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities ... "(fn4) The ADA is silent on the issue of the use of a service animal as a reasonable accommodation; however, the Department of Justice, which promulgated the regulations enforcing the provisions of the ADA, interpreted the ADA to require a place of public accommodation to "modify [its] policies, practices, or procedures to permit the use of a service animal by an individual with a disability."(fn5)

Similarly, Vermont's Fair Housing and Public Accommodations Act ("VFHPA") establishes that "no individual with a disability shall be excluded from participation in or be denied the benefits of the services, facilities, goods, privileges, advantages, benefits, or accommodations, or be subjected to discrimination by any place of public accommodation on the basis of his or her disability ..."(fn6) Like the ADA, it further requires a place of public accommodation to "make reasonable modifications in policies, practices or procedures when those modifications are necessary to offer goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities ... "(fn7) With regard to service animals in particular, VFHPA explicitly provides that an "owner or operator of a place of public accommodation or his or her employee or agent shall not prohibit from entering a place of public accommodation ... [a]n individual with a disability accompanied by a service animal."(fn8)

The fair housing component of VFHPA provides, among other things, that it shall be unlawful for "any person ... to refuse to sell or rent, or refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling or other real estate to any person because of the ... handicap of a person ... "(fn9) It also prohibits, among other things, "any person ... to discriminate against, or harass any person in the terms, conditions or privileges of the sale or rental of a dwelling or other real estate,or in the provision of services or facilities in connection therewith, because of the ... handicap of a person ..."(fn10)

The resemblance between the ADA and VFHPA was intentional. In passing VFHPA, the Vermont legislature specifically stated that VFHPA was "intended to implement and to be construed so as to be consistent with the [federal] Americans with Disabilities Act and rules adopted thereunder ..."(fn11)

The United States Congress also passed amendments to housing legislation designed to provide further protection to individuals with disabilities. The Fair Housing Amendments Act of 1988 (the "FHA") protects the rights of persons with disabilities to keep service animals, even when their landlord has a policy or lease terms explicitly prohibiting pets. Discrimination under the FHA includes, among other things, "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling."(fn12)

Finally, the other federal law besides Title II to the ADA(fn13) that provides similar protections is Section 504 of the Rehabilitation Act of 1973 (" 504"), which provides in pertinent part that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ..."(fn14) By passing 504, the first time the nation recognized the rights of people with disabilities, Congress intended to prohibit recipients of federal financial assistance from discriminating on the basis of disability in employment, education, architectural barriers, health, welfare and social services. Amendments to 504 in 1992 further required that the head of each federal executive agency to promulgate regulations needed to carry out the purposes of the Act.(fn15) One of Congress' stated purposes in passing 504 was to "firmly establish the rights of [disabled] Americans to dignity and self-respect as equal and contributing members of society, and to end the virtual isolation of millions of children and adults from society."(fn16)

Statutory Definition of Disability

To qualify for a reasonable accommodation under the ADA, VFHPA, FHA and/or 504, the person requesting or needing the reasonable accommodation must meet the statutory definition of having a "disability." There are three broad categories of disabilities under each of these statutes: (1) a physical or mental impairment that substantially limits one or more major life activities (such as walking, seeing, learning, and performing manual tasks); (2) a record of having such an impairment; or (3) being regarded as having such an impairment.(fn17)

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