TIPS: Technical Information Perspectives and Solutions (TIPS)—April 2008 SERVICE ANIMALS Copyright © 2008 The DBTAC: Southeast ADA Center (Southeast DBTAC) publishes a variety of TIPS intended to provide accurate information on issues and concerns related to the Americans with Disabilities Act (ADA) for information specialists, advocates, business owners, government agencies, managers, and the general public. The examples used in these TIPS are based on actual questions received by the Southeast DBTAC, and are designed to strengthen the capacity of those who provide information and technical assistance to help others achieve effective compliance with the ADA. This TIPS reflects the best professional judgment of the Southeast DBTAC staff and its regional affiliate network and has not been reviewed for accuracy by federal enforcement agencies. If you have questions or suggestions about the TIPS, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org. Under the Americans with Disabilities Act (ADA), a qualified individual with a disability who uses a service animal must be allowed to bring the service animal to any place of employment, business, and state or local government facility or program. What is a Service Animal? According to Department of Justice (DOJ) regulations, a service animal is 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. Besides dogs, many kinds of animals can be service animals if they meet this definition. Such animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government. Service animals are not considered pets. What about Therapy Animals? Therapy animals provide people with contact to animals, but are not limited to working with people who have disabilities, and usually are not considered service animals. They ordinarily are the personal pets of their handlers, and work with their handlers to provide services to others. Federal law does not require places of public accommodation to modify “no pets” policies for therapy animals. Is Documentation Required? An individual does not need to provide documentation regarding his/her need for a service animal. The ADA generally prohibits covered entities from directly asking a person if s/he has a disability. If, however, the need for the service animal is not apparent, the entity may ask what tasks the animal performs and whether the animal is required because of a disability. Can fees be charged for service animals? Covered entities may not charge deposits or surcharges for allowing a service animal to accompany an individual with a disability, even if deposits are normally required for pets. However, individuals with disabilities may be charged for damage caused by their service animal, so long as the entity regularly charges individuals without disabilities for the same damages. Are there Circumstances When a Service Animal Can Be Excluded? A service animal may be excluded when the animal’s behavior poses a direct threat to the health or safety of others. For example, a service animal that displays vicious behavior towards other guests or customers may be excluded. However, assumptions may not be made about how a particular animal is likely to behave based on past experience with other animals. Each situation must be considered individually. In some instances, the presence of a service animal may conflict with other interests. A California plaintiff sued a ferry company who refused to allow her service animal into a specific area of the ferry. The ferry company based its one-time refusal on the requests of a frequent customer with dander allergies for an animal-free area. The court found that the ferry did not violate the ADA because it based its decision on consideration for the health and safety of others. See Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061 (9th Cir. 2007). When the accommodation of a service animal would result in a fundamental alteration to the nature of the business, service or activity it may be excluded. For example, a dog barking during a theatrical performance may be excluded. However, the individual with the disability must be allowed to return without the animal. What About Service Animals in Housing? The Fair Housing Act Amendments prohibits discrimination because of disability in the sale, rental or advertising of dwellings. The law requires public and private housing providers to modify policies and practices that deprive individuals with disabilities of their rights to enjoy and use their dwellings. The Act requires covered housing providers to make reasonable accommodations to policies that prohibit pets or require deposits for animals. Exemptions include buildings with four or fewer units where the landlord lives in one of the units, and private owners who do not own more than three single family houses. What About Service Animals in Air Travel? According to the Air Carrier Access Act Part 382 regulations, airlines must permit service animals to accompany a qualified person with disabilities on a flight. The service animal may accompany the individual in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain clear in order to facilitate an emergency evacuation or to comply with Federal Aviation Administration regulations. Airline personnel may ask whether an animal is a service animal, but may not require documentation as a prerequisite to boarding. Airlines may rely on credible verbal assurances of the individual using the animal. Identification may include cards or other documentation, presence of a harness or markings on a harness, tags, or the credible verbal assurance of the passenger using the animal. The U.S. Department of Transportation Guidance Concerning Service Animals in Air Transportation also recognizes emotional support animals as service animals. More information may be obtained at http://airconsumer.ost.dot.gov/rules/20030509.doc (Word version) or http://airconsumer.ost.dot.gov/rules/20030509.pdf (PDF version). Enforcement * Title I of the ADA—File a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discrimination. (www.eeoc.gov/charge/overview_charge_filing.html) * Title II of the ADA—File a complaint with the U.S. Department of Justice (DOJ) by calling 1-800-896-7743 or file a complaint with the Office of Civil Rights at the Department of Health and Human Services at 1-800-368-1019. (www.ada.gov/t2cmpfrm.htm) * Title III of the ADA—File a complaint with U. S. Department of Justice, Civil Rights Division (www.ada.gov/t3compfm.htm) * Housing—File a complaint with Housing and Urban Development (HUD) within one year after the alleged discrimination or file a lawsuit in federal district court within two years of the alleged incident. (www.hud.gov/complaints/housediscrim.cfm) * Air Travel—File a compliant with the U.S. Department of Transportation Aviation Consumer Protection Division. (http://airconsumer.ost.dot.gov/problems.htm) Resources The following links provide additional information about Service Animals. U.S. Department of Justice * Technical Assistance Letters o www.usdoj.gov/crt/foia/tal482.txt o www.usdoj.gov/crt/foia/tal151.txt o www.usdoj.gov/crt/foia/tal302.txt * ADA Business Brief: Service Animals www.ada.gov/svcanimb.htm * Commonly Asked Questions About Service Animals in Places of Business www.usdoj.gov/crt/ada/qasrvc.htm U.S. Department of Transportation * U.S. Department of Transportation Aviation Consumer Protection Division http://airconsumer.ost.dot.gov/index.htm * U.S. Department of Transportation Guidance Concerning Service Animals in Air Transportation http://airconsumer.ost.dot.gov/rules/20030509.doc (Word file) http://airconsumer.ost.dot.gov/rules/20030509.pdf (PDF file) Other Organizations: * Delta Society www.deltasociety.org * Southeastern Guide Dogs, Inc. www.guidedogs.org ILRU Webcasts * Part I: Service Animals and the Law: Which Animals do the ADA & State Law Recognize? - Sally Conway, U.S. Dept. of Justice; Ed Eames, PhD, Toni Eames, MS and Aaron McCullough on April 14, 2004. www.ilru.org/html/training/webcasts/archive/2004/04-14-SC.html * Part II: Questions & Answers about Service Animals and the Law: Which Animals do the ADA & State Law Recognize - Sally Conway, U.S. Department of Justice and J. Aaron McCullough, DLRP on April 29, 2004. www.ilru.org/html/training/webcasts/archive/2004/04-29-SC.html * Part III: Service Animals in Housing and Air Travel - Betsy Darling, HUD; Allyssa D. Wheaton-Rodriguez, HUD; Ed Eames, PhD and Toni Eames, MS; Stacy Toomey, Continental Airlines on May 12, 2004. http://www.ilru.org/html/training/webcasts/archive/2004/05-12-BD.html * Part IV: Transportation and the ADA: Latest Updates, Service Animals, Q&A - Marilyn Golden, DREDF on June 16, 2004. www.ilru.org/html/training/webcasts/archive/2004/06-16-MG.html DISCLAIMER: The Disability and Business Technical Assistance Center (DBTAC) – Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant No. H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (Voice/TTY). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. DBTAC- SOUTHEAST ADA CENTER (SOUTHEAST DBTAC) 1419 Mayson Street, Atlanta, Georgia 30324 (800) 949-4232 (v/tty) (404) 385-0636 (404) 385-0641 (Fax) sedbtacproject@syr.law.edu www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094