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Service Dog Advocates, Is Your Proposed Rule Change Discriminatory?

By Jshortell @servicepoodle
As an advocate for users of assistance animals, I get discouraged when I see service dog handlers on social media and blogs trying to undermine the rights of other people with service dogs. There is so much misinformation out there, so little civil rights education, and such confusion between actual laws and regulations versus the preferences and prejudices of the public, service dog trainers, and service dog handler groups. It’s understandable that even well-meaning handlers could think that registration, certification, testing, etc., should be imposed on their peers.
If you’re thinking of proposing or promoting the idea of such limits on our rights to service dogs, please take a moment to read this ADA refresher with quotes from the Department of Justice (the agency that makes the regulations and is responsible for the enforcement of the public access section of the ADA, Title III).
Your registration or identification scheme is discriminatory if it keeps any person with a disability from living as free and spontaneous a life as a person without their disability when it comes to public accommodations:
Specifically, title III requires places of public accommodation to make reasonable modifications to policies, practices, or procedures to afford access to persons with disabilities, including those who use service animals, that is equal to the access afforded to individuals without disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a). [DOJ, from “SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND WAL-MART STORES, INC.” http://www.ada.gov/walmart.htm, emphasis added]
Before you propose a scheme for registering or identifying service dogs, ask yourself if it would make access more difficult for someone who . . .
. . . is jogging by a coffee shop with their seizure alert dog when a friend waves him/her down and offers to buy breakfast. The dog is unvested and the jogger is not carrying his/her wallet or purse. Could this person be denied the right to eat at the restaurant because of your scheme?
. . . is a lawyer taking Eskalith and Depakote which cause frequent urination and diarrhea/loss of control of the bowels. Nature isn’t just calling, she’s screaming when the person and psychiatric service dog rush from the courthouse and arrive at a restaurant for a business luncheon he/she is hosting. Will your scheme increase
the possibility that he/she will be humiliated in front of his/her clients or associates and have to leave with soiled clothing?
Your training/certification scheme is discriminatory if by making it more expensive, complicated, or more difficult for any person with a disability or in any way limits their access to a service dog.
Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.
Some commenters proposed specific behavior or training standards for service animals, arguing that without such standards, the public has no way to differentiate between untrained pets and service animals. Many of the suggested behavior or training standards were lengthy and detailed. The Department believes that this rule addresses service animal behavior sufficiently by including provisions that address the obligations of the service animal user and the circumstances under which a service animal may be excluded, such as the requirements that an animal be housebroken and under the control of its handler.
[DOJ, Department of Justice ADA Title III Final Rule]
Notice the phrase “full array” and the omission of any mention of owner training other than tasks or work. Other than being housebroken, not menacing, etc., “under control of its handler” is the only requirement for public access.
It’s impossible to come up with any meaningful, specific standards that won’t limit the rights of some person with a disability to train and use the service dog of their choice. If I’ve got a seizure disorder and a dog with training flaws who can reliably alert me, it’s up to me to decide if I can work around those flaws and then do so in a way that keeps the dog under my control or, in the event of a human or canine mistake, quickly brings the dog back under my control.
Whether the public approves or my peers are embarrassed by my service dog is irrelevant. Under the Civil Rights Act of 1963 (on which the ADA was based) you don’t get any fewer rights because your appearance or behavior is embarrassing to other people of your race or ethnicity or because it may feed the public’s bad opinion of your racial or ethnic group. I’m sure there were a lot black people in the 60s who felt natural hair and Dashikis some were sporting weren’t helping their race’s acceptance. That didn’t make it any less illegal to forbid them in a dress code. “No shoes, no shirts, no service is legal,” but not “no Afros.”
It’s also impossible to come up with a meaningful test that won’t be difficult or impossible for some to pass because of their disabilities. Some may even be injured in the attempt if the stress of being tested or the presence of the tester triggers a seizure, panic attack, etc.
The ADA puts the power in the hands of the person with the disability. Each person with a disability (not the government, not their doctor, and not other people with disabilities) is in charge of how they will live with their disability, what they will use as assistance, and how they will use it. It is the service dog handler who decides how their service dog will be trained or acquired, it is he/she (not a doctor) who determines that a service dog is appropriate to help them and what it will be trained to do, it is he/she who determines if the dog is appropriate for public access, it is she/he who is responsible for any damage, injury, etc., caused by their dog.
This is consistent other public access rights under the ADA. No one with a disability can, for example, be asked for proof that they need their wheelchair, be told which model of wheelchair they may bring into a place of business, or be required to have their wheelchair inspected or registered . It is legal to construct your own wheelchair and the DOJ even refuses to specify the maximum dimensions of a wheelchair. See http://www.today.com/news/veteran-invents-tank-wheelchair-help-his-paralyzed-wife-2D79776968
Even when a person chooses to use a vehicle that non-disabled people more often use, like a golf cart, ATV, or a Segway (which gives rise to similar issues of faking/nuisance as to whether the person is actually a disabled person and whether one will use the vehicle safely and in a non-disruptive way) businesses are allowed to ask if one is disabled, but are not allowed to require documentation even though state-issued mobility disability placards are ubiquitous. They have to accept placards, but they also have to accept the person’s verbal statement alone. See http://www.ada.gov/opdmd.htm

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