Introduction
Animals have always been a large part of day-to-day human interactions. Humans began to domesticate animals approximately 12,000 years ago. They were originally used to provide efficacy to certain functions such as hunting and herding. Over time, however, they began to be used mainly for companion purposes (Butwin, 2019). Dogs are now considered “man’s best friend”, some women proudly dub themselves “crazy cat ladies”, and you can find pigs, chickens, and lambs outside of homes with farms. After World War I, millions of veterans returned home from the war having to manage permanent disabilities. This was the first record of service animals in US history (Butwin, 2019).
This essay analyzes the different laws and regulations established by different government agencies regarding emotional support animals and service animals when traveling. It will examine two court cases to demonstrate the different legal disputes that can arise when dealing with patrons who require special accommodation for travel with service and emotional support animals. This essay will also establish the differences between service animals and emotional support animals. In order to do so, the paper will determine the laws that apply to each category of animal and establish the main differences that allow travel providers the legal ability to allow or deny these animals access to travel.
Historical Background
Emotional support animals (ESAs) are defined by American Humane as “companion animals who help their owners cope with the challenges associated with emotional and mental health conditions (such as depression and anxiety) by providing comfort with their presence” (American Humane, 2018). It is important to distinguish that ESAs are not pets. Unlike pets, ESAs have more access to locations such as restaurants and hotels because they are prescribed by licensed medical health professionals. Unlike service animals, ESAs have no official training and are merely there for companionship and support for their owners. Most any animal that would be considered a pet can be classified as an ESA. This includes cats, dogs, mice, rabbits, birds, pigs, horses, and more (Butwin, 2019).
Service animals are trained to assist their owners with the ease of challenges related to the owner’s physical, psychiatric, sensory, and/or developmental disability. These animals go through long and strenuous training to be able to help their future owners. Some common types of service animal types are guide, hearing, medical alert, mobility, autism service, and psychiatric service animals (American Humane, 2018). Service animals have the ability to accompany their handlers in any public space or facility in which they might be required. The American Disabilities Act protects these animals and their handlers by establishing a set of rules and regulations that must be followed by establishments hosting these types of guests, as well as the guests themselves (Sutton, 2015).
The American Disabilities Act of 1990, also known as the ADA, was created to eliminate discrimination against those who were physically and/or mentally disabled. There are three main titles divided in the ADA in order to protect disabled persons. Title I applies to employees, Title II applies to state and local government, and Title III applies to private entities that serve as public accommodations (Bourland, 2009). Public accommodations refer to places such as hotels, restaurants, theaters, shopping centers, and other places that serve the public. Despite its wide range of coverage, ADA laws do not apply to housing, education or air transportation due to them being governed by other federal statutes. ADA laws are not just enforced by the ADA. In order to obtain full cooperation and to ensure that these rules and regulations are being followed appropriately, other government organizations also enforce ADA laws and work with the ADA to protect disabled persons from discrimination.
Restaurants and other public places have a few things to keep in mind when receiving patrons with disabilities. The first is that ADA regulations overrule any local health department regulations allowing the facility to ban animals from entering their establishment. This means that if a guest with a service animal (these rules exclude emotional support animals) enters into a public establishment, they cannot be turned away or denied service. The staff of the establishment is only allowed to ask two questions to disabled guests with a service animal. The first is “Is this a service animal required because of a disability?” and “What work or tasks is the animal trained to perform?”. Anything further, like asking the disabled person to prove their disability is permitted. Restaurant guests can also not be separated from other patrons when dining. The public establishments are not the only ones responsible for following ADA laws and regulations. Patrons are also responsible to make sure that they and their service animals are compliant. If a service animal uses the restroom in the middle of the establishment or if the service animal eats from the table, the public establishment is well within their rights to ask the patron and their service animal to leave (National Restaurant Association, 2019). It is also important for guests to be mindful of how long they leave their service animal unattended. For example, a guest visiting a hotel that is not taking their service animal with them somewhere must make sure to put the animal in a crate or periodically check on them to make sure that they have not causer damage to the room. (Army Public Health Center Animal Health, 2016)
Analyzation of Cases Dealing with ADA Law
Summary of Case: McDonald v. Department of Environmental Quality
The first case this paper will be analyzing is McDonald v. Department of Environmental Quality (DEQ). In this case, the respondent, Jamie McDonald was hired by the DEQ as one of their fiscal officers in their financial services division in August of 2002. McDonald suffered from dissociative episodes which caused her to space out, leave tasks incomplete, and lose track of her surroundings. She also suffered from depression and a permanent leg injury sustained in a car accident. As a result, McDonald had a service dog named Bess to assist her physically and emotionally. As time went on and winter approached, Bess began to slip and slide on the tile floors in the building where McDonald was employed. McDonald called CARES, the agency that trained and placed Bess as a service dog. When McDonald informed them of the situation, they advised McDonald to have Bess practice on similar floors in order for her to become acclimated with walking in the DEQ building. McDonald practiced with Bess over the weekends at establishments with similar floors. The result was unsuccessful, so McDonald attempted to put booties on Bess’s feet. That also turned out to be unsuccessful. In March of 2003, McDonald requested that DEQ install floor coverings on the ground floor that lead from her office to the elevator, restrooms, and building entrances to prevent Bessie from slipping and falling. DEQ submitted a request to the General Services Division for extra floor mats, yet no further action was taken.
In July of 2003, a “condition inventory” of the building was issued by Doug Olson, the General Services Division facility manager. In his inventory, he noted that the ground floor of the building become slippery when it is wet and suggested that carpet runners be installed as a solution. In September 2003, McDonald sent an email to Virginia Cameron, the human resources manager for DEQ. In that email, she requested that as per the American Disabilities Act (ADA), she would like full length runners to be installed in the ground floor hallways of the building.
Cameron forwarded this request to Olson but received no response. Cameron reached out to Constance Enzweiler, the ADA specialist for the Department of Administration. Enzweiler then reached out to the federal Job Accommodation Network (JAN). In November 2003, Cameron met with McDonald to see if where the carpet runners were installed would be good enough. McDonald said that she would attempt to use them but did not think that they would be adequate enough because the area she covered was much smaller than she had originally requested. In January 2004, Bess fell again, but this time she sustained an injury to her neck. Bess needed treatment for a cervical disc disease due to the fall. When she was being examined, it was also noted that she had arthritis in her shoulders and excessively long toenails. Bess was physically limited due to this fall. McDonald attempted to get more adequate floor runners inserted, however she was told that the general services department would not pay for them. In 2004 Bess fell a third time, causing McDonald’s to have to leave Bess at home. McDonald attempted to make a request one more time and again was met with no result. McDonald resigned in August 2004 to accept a higher paying position. McDonald filed a disability discrimination complaint with the Human Rights Bureau of the Department of Labor and Industry (DOLI) (McDonald v Dep’t of Envtl. Quality, 2009)
Verdict & Analyzation
The DOLI hearing examiner ruled in favor of McDonald and awarded her damages in the amount of $26,869.84. DEQ attempted to appeal the decision made by DOLI. The case was presented to the Human Rights Commission (HRC). Due to only four of the five of the HRC members being present (one member had recently resigned), the vote was split and HRC decided to uphold the decision made by DOLI. McDonald was ignored and overlooked in her request to get accommodations for her and her service animal. This case was included to show the importance of employers making accommodations for their employees with disabilities. Travel and lodging businesses should take heed and learn from the experience that DEQ had with not making an effort to make those accommodations for their employee. Part of ADA regulations for employees is that they are entitled to accommodations that will allow them to do their jobs with ease. When DEQ ignored McDonald’s multiple requests to add a proper floor covering that would allow McDonald’s and Bess ease of access to the building, they were discriminating against McDonalds. ADA Title I protect employees against discrimination, specifically in this case by not providing the necessary accommodations allowing the service animal to do their job well. The DEQ could argue that Bess already had arthritis and had long fingernails which could have contributed to the severity of her injuries. The result of the verdict, however, shows that it is better for employers to make sure they are making reasonable accommodations for any disabled employees. (McDonald v Dep’t of Envtl. Quality, 2009)
Summary of the Case: D.E. v American Airlines
The second case that this paper will review is D.E v American Airlines. In this case, the plaintiff, D.E. is alleging claims of negligence, negligence per se, intentional infliction of emotional distress and negligent infliction of emotional distress against American Airlines. On October 21, 2016, a travel agent for the plaintiff’s employer booked a ticket for the plaintiff to travel in November 2016. The plaintiff adv the travel agent that she would need extra leg room because she was traveling with her psychiatric service animal. When the reservation was made, the travel agent chose 9B, which had extra legroom at the plaintiff’s request. Four days before the flight, the plaintiff called the American Airlines reservation department and requested that her seat be changed to a bulkhead window seat. Her call was connected to an American Airlines Special Assistance Coordinator (SAC). The department handles requests for passengers with disabilities. While waiting for further contact from the SAC, the plaintiff sent in a signed copy of an American Airlines “Emotional Support/Psychiatric Service Animal Authorization Form” along with a handwritten note to discuss further accommodations needed.
The next time there was contact between the SAC and the plaintiff was the day before the plaintiff’s flight. The SAC department called the plaintiff but received no answer and left her a voicemail. Later that same day, the plaintiff checked in for her flight. After reviewing the seating information, she contacted the SAC department. She was told that because she had already checked in, she would need to speak to the local airport personnel for her request to be fulfilled. The plaintiff spoke with a supervisor from the SAC department who noted that he advised the plaintiff that her concerns for her support dog had been documented and that she would need to report to a local airport personnel in order for her request for a bulkhead window seat to be fulfilled. The day of her flight, the plaintiff arrived at the airport and went to the ticket counter where the agent informed her that seat was 9B and that she was unable to change it to the seat she requested (7A) because it had been assigned to another passenger. The agent was said to be impolite when the plaintiff attempted to explain that the reason for her requesting the seat reassignment was due to the need for accommodation due to disability. Another American Airline’s employee offered the plaintiff a bulkhead aisle seat and a regular window seat which the plaintiff declined. At the flight gate, the plaintiff was reassigned to the bulkhead aisle seat and she boarded the plane. Once onboard, the plaintiff asked the passenger in the bulkhead window seat if they could switch and the passenger agreed. The plaintiff moved to the bulkhead window seat. An American Airlines employee asked the other passenger if they would be willing to move to another seat to allow the plaintiff and her service more space for the flight. The passenger agreed and the seat next to the plaintiff was left empty for the rest of the flight. No oneat American Airlines ever questioned the plaintiff and her right to bring the service animal onto the aircraft (D.E. v. Am. Airlines, Inc., 2020).
Verdict & Analyzation
The plaintiff brought the claims of negligence, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress against American Airlines (defendant). The defendant’s filed a motion for summary judgement on all presented claims. The court held a hearing on the defendant’s motion where the plaintiff admitted that her second claim for relief alleging an intentional infliction of emotional distress should be dismissed. The court found that there was no breach of the defendant’s responsibility to the standard of care set forth in the Air Carrier Access Act (ACAA). The plaintiff also did not oppose the defendant’s motion for summary judgment on the claim for intentional infliction of emotional distress. Therefore, the court grants the defendant’s motion. The US Department of Transportation released a brochure covering what is required and can be asked of patrons traveling by air with service animals. It includes information like “An airline is not required to upgrade you to a different class of service to accommodate your animal” and “Your animal must be permitted to accompany you in the space under the seat in front of you” (U.S Department of Transportation, 2020). All of the things listed in this brochure were followed by American Airlines. This case was included to show the importance of following all protocols and maintaining the same standard of care as the rest of the industry. American Airlines employees followed their procedures properly when assisting the plaintiff. If anyone had skipped a step or been proven to have mistreated the plaintiff and her service animal, the outcome would have been very different (D.E. v. Am. Airlines, Inc., 2020).
Discussion of Laws/Act Application
As mentioned previously in this paper, there are some distinct differences between ESAs and service animals. The main one being that ESAs have no training and are strictly for emotional support, while service animals go through extensive training and aid their owners with physical tasks. ESAs for a long time have been seen as a “hoax” and have even been dubbed as “fake service animals” (Wlodarczyk, 2019). This also causes a lot of confusion and leaves a lot of room for discrimination against ESAs. Despite the confusion, there are laws and acts that apply to both service animals and ESAs. One of those acts is the Fair Housing Act (FHA). The FHA “prohibits discrimination in housing and is administered by the Department of Housing and Urban Development (HUD)” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). According to the FHA, any species of animal can qualify and establish that an animal must provide a disability assistance and is more than just a pet. The FHA states that an animal can qualify merely by “providing emotional support that alleviates one or more identified symptoms or effects of a person’s disability” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Another act that includes ESAs and service animals within their set of regulations is the Air Carrier Access Act. “The Air Carrier Access Act (ACAA) prohibits discrimination aboard airplanes and is administered by the Department of Transportation” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). It uses the term “service animals” to describe the animals under which the laws apply, however the phrase encompasses both service animals and ESAs (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).
There are rules, however, that apply to service animals that do not apply to service animals due to the typically extensive training that service animals must undergo. One big set of laws that separate the difference between service animals and ESA’s is the American Disabilities Act (ACA). The ADA clearly states that “first, only dogs and miniature horses can qualify as service animals. Second, the animal in question must have been individually trained to perform a task related to the owner’s disability. This training need not be particularly extensive or even professional; in theory, owners could train the animal themselves at home” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Unlike guests with ESAs, who can be asked to present proof of documentation, guests with service animals cannot be pressed for certain information about whether or not the animal is required (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).
Conclusion
This paper’s goal was to analyze and discuss the differences and the importance of both ESA’s and service animals. Through the analyzation of two different cases regarding service animals and emotional support animals, this paper was able to identify the importance of each animal group to their owners as well as the appropriate and inappropriate ways for public establishments and travel entities to handle guests with service animals. By discussing the different laws and acts that apply to both animal groups versus one over the other, this paper was able to establish the difference of the two animal groups and how they are able to be handled when entering a public/ travel entity. In the travel and lodging industry, it is a very high possibility to encounter a guest with a disability. In order to protect the guest and the business organization, it is important to understand what laws apply to what type of animal group, and what rights the business organization has when encountering a guest with one of those animal groups. This paper has successfully outlined some of these rules and has given options as to what can be done to prevent discrimination in the future.
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