Wild Kingdom ADA and Service Animals, 0717 SCBJ, SC Lawyer, July 2017, #46

• Author: William Floyd and Shannon Vogan, J.

Wild Kingdom ADA and Service Animals

Vol. 29 Issue 1 Pg. 46

South Carolina BAR Journal

July, 2017

William Floyd and Shannon Vogan, J.

Introduction

Must a restaurant allow a customer to be accompanied by a dog? Or. can an employee be assisted by an animal at work? The Americans with Disabilities Act (ADA) and other laws protect customers and employees who require service animals to go about their daily lives. Employers and business owners need to stay up-to-date on laws regarding the accommodation of people who require service animals.

What is a service animal?

The main source of law that protects people with disabilities is the ADA.¹ Title I of the ADA helps people with disabilities access the same employment opportunities and benefits as people without disabilities, and Titles II and III prohibit discrimination on the basis of disability by public and privately owned entities.²

As defined by the ADA regulations, a "service animal" is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability³ The tasks performed by the dog can include physical, sensory, psychiatric or intellectual tasks, or those that will assist individuals with a mental disability⁴

What about other types of animals?

Although only "dogs" are included in the ADA's definition of service animals, the regulations have a separate provision that allow miniature horses to be considered service animals in some situations.^[5] In one case, a court found that a miniature horse named Ellie was a service animal under the ADA because the plaintiff had a disability that affected her mobility, and Ellie was trained to steady her as she walked.⁶ The regulations state that public entities must make reasonable modifications to allow a person with a disability to use a miniature horse if the horse has been "individually trained" to do tasks for the benefit of that person.⁷ However, there is no specified type or amount of training that a horse must undergo to qualify as a service animal.⁸

Prior to 2011, the realm of service animals resembled a "wild kingdom." Before the regulations were updated, 28 C.F.R. § 36.104 defined a service animal as "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability." As a result, people claimed that a number of different types of animals were service animals under the ADA. For example, one plaintiff, suffering from bipolar disorder, alleged that his parrot, Sadie, was a service animal because she calmed him down when he was on the verge of a psychotic episode by whispering in his ear, "It's OK, Jim. Calm down, Jim."^[9] He carried her around at all times in order to help with his disability¹⁰ After Sadie was denied access into a public place, he filed a complaint with the Office of Civil Rights, which held that he was wrongfully denied access because Sadie was a "therapy animal."^[11] In another lawsuit, a plaintiff suffering from autism claimed that her four monkeys, who had a comforting and calming effect on her, were service animals under the ADA.¹² Other plaintiffs claimed that sugar gliders,¹³ chimpanzees,¹⁴ snakes¹⁵ and ferrets¹⁶ were service animals.

However, in 2011 the regulations were amended to include only "dogs" and "miniature horses."¹⁷ It was noted in response to these challenges that neither "exotic animals" nor "emotional support animals" qualify as service animals under the ADA.¹⁸

Service animals in public accommodations

Under Titles II and III of the ADA, a public accommodation must be made for a person who is disabled. The regulations clarify that this includes an accommodation of the use of a service animal.¹⁹ The work or tasks performed by the service animal must be directly related to that individual's disability²⁰ Examples of acceptable work or tasks include helping someone who is blind with navigation, alerting someone who is deaf to sounds or the presence of other people, providing protection or rescue work, pulling a wheelchair, helping someone during a seizure, alerting someone to the presence of allergens, providing balance and physical support for someone with a disability that affects mobility, and helping someone with neurological disabilities by preventing or interrupting impulsive or destructive behavior.²¹ Some tasks performed by service animals are specifically not included in the definition of "service animal," such as providing comfort and companionship or deterring crime with an animal's presence.²²

Courts have loosely interpreted the rule that an animal's work must be "directly related" to the person's disability and found plaintiffs must only show "some evidence of individual training" that sets the service animal apart from other pets.²³ For example, a court found that a small Shih Tzu/Poodle mix dog named Jazz was a service animal under the ADA because it provided "minimal protection" and retrieved small dropped items for a quadriplegic person, who used a wheelchair for mobility²⁴ On the other hand, another court found there was an insufficient relationship between a person's disability and service animal where a dog helped remind a person to take her medications at a certain time each day²⁵

A service animal—really?

In order to establish the connection between a service animal and a person's disability, it is not necessary to provide evidence of the animal's certified training. When it is not obvious what service an animal provides, only limited inquiries are allowed by employees and staff at a public place, including: (1) Is the dog a service animal required by a disability? and (2) What work or task has the dog been trained to perform?²⁶ No further inquiries into the service animal or the disability are permitted. Specifically, staff cannot ask about a person's disability, ask for medical documentation or ask the dog to demonstrate its ability to perform the work or task.²⁷

Further, there are only two circumstances in which a person with a disability may be asked to remove a service animal from the premises: if the dog or miniature horse is out of control and the handler does not take effective action to control it, or if the animal is not housebroken.²⁸ Additionally, even if the handler is appropriately asked to remove the animal from the premises, the person with a disability must be given the opportunity to obtain goods or services without the animal there.²⁹

If Fido is not allowed into a public place even though he is a service animal, a plaintiff can ask the court for an injunction banning the public place from acting this way in the future, and a plaintiff can also receive damages. In Sheely v. MRI Radiology Network,^[30] the court found that the plaintiff's claims were not made moot when the public place which banned her from bringing in her service dog changed its policy before litigation ensued to be ADA-compliant. The plaintiff still had a claim for compensatory damages.³¹ Additionally, this same court held that a plaintiff who is refused entry with a service dog may be entitled to damages for...