Mia, a Chihuahua service dog, is seen with its handler at the Westminster Kennel Club dog show (Bloomberg)
A recent trend in litigation associated with the Americans with Disabilities Act is people with service dogs entering places of public accommodation.
Under the ADA, state and local governments, businesses and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.
Businesses that do not know or understand the rules associated with this act may be susceptible to litigation in this regard. While the ADA does not allow for plaintiffs who sue privately to obtain money damages, a plaintiff can recover attorney fees, which can be costly for a business.
Moreover, compensatory damages can be awarded to a plaintiff if the Department of Justice sues as a result of a person with a disability’s complaint for failure to comply with the ADA. Therefore it is important for a business to understand how to enact its policies and train its employees to ensure compliance with the ADA and avoid litigation.
Under the ADA, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities, including a physical, sensory, psychiatric, intellectual or other mental disability. (While service animal has been primarily defined as dogs, there is a separate provision under the act regarding miniature horses that have been individually trained to do work or perform tasks for people with disabilities.)
The task performed by the dog must be directly related to the person’s disability. The only established training requirements for a service animal are those listed in the definition above and that the service animal must be trained to behave properly in places of public accommodation.
However, there is no requirement that the dog be licensed or certified by a state or local government to qualify. The service animals must be harnessed, leashed or tethered unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices. In those situations, the individual must maintain control of the animal through other effective controls.
Another growing complaint is when an individual claims a pet is a service animal when the individual is not a protected person under the ADA or the pet does not qualify as a service animal under the ADA’s definition. While the ADA considers the use of a fake service dog a federal crime, this may be difficult to detect.
According to the Department of Justice, animals are not required to wear any special identification, and it is unlawful to require proof of a disability or identification for the service dog. The ADA states that a limited inquiry is allowed when it is not obvious what services an animal provides to its handler.
To be clear, businesses may not ask about the nature or extent of an individual’s disability and as discussed above, may not require documentation or proof that an animal has been certified, trained or licensed as a service animal.
There are generally two questions that a business may ask of a dog owner: Is the dog required because of a disability? What task or service has the dog been trained to do?
The business, however, may not ask the individual to have the dog perform the task or service as proof—the business must take the answers to these questions at face value. If it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability, then the above inquires may not be made by the business.
While only limited inquiries may be made by a business if it is not readily apparent that the animal is a service dog, the law does allow for a business to ask an individual with a disability to remove the dog from the premises under certain circumstances.
These exceptions are if the animal is out of control and the animal’s handler does not take effective action to control it, or the animal is not housebroken. While businesses must allow patrons with disabilities to enter with their service dogs, therapy, comfort or “emotional support animals” do not meet the definition of a service animal.
Specifically, the ADA states that the crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort or companionship do not constitute work or tasks and as such do not meet the definition of a service animal.
Businesses who are not aware of what is allowed under the ADA may be targeted by individuals with service dogs.
There has been an increase in these types of lawsuits where an individual comes into the business and will attempt to get the business to make an improper inquiry about the dog or their disability in order to file suit.
While it may be difficult to spot a “fake” service dog, a business can protect itself from future litigation by training its employees to properly assess the situation and make a limited inquiry of a dog handler, if necessary.