air carrier Access act

Animals on Planes? DOT’s Proposed Service Animal Regulations

January 25, 2020 by William Goren Leave a Comment

peacock — On a plane? If it ever was…Not anymore.

On a plane? Yes, if I trained him for use outside the house.

Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

As you know, I typically do not blog more than once a week. However, I have a good reason for doing so this week. Next week, I am going to be in Austin (Round Rock actually) attending and speaking at the Accessibility Professionals Association conference. Immediately following that or perhaps the week after, I very well may be in Houston testifying as an expert witness. So, I have a little bit of time this morning. Also, on Wednesday, the Department of Transportation came out with proposed regulations on service animals, here. Since I have written about the issue of animals on planes numerous times before (such as here, here, and here), I feel compelled to blog on it. As usual, blog entry is divided into categories and they are: 1) why DOT felt compelled to issue regulations; 2) just what are the proposed regulations and what are they seeking further comments on; and 3) thoughts/takeaways. The reader is free to focus on any or all of the categories.

Why The Regulations?

Service animal related complaints are increasingly a significant portion of disability related complaints that the department’s aviation consumer protection division and airlines receive.
Concerns have been raised by airlines, airports, and disability advocates about inconsistency between the definition of a service animal when it comes to U.S. carriers and foreign air carrier services.
The current rules are inconsistent with DOJ’s ADA rules. That could lead to some strange situations. For example, a restaurant on an airport concourse justifiably refusing an animal but that animal having the right to fly on the plane.
The current rules are inconsistent with respect to the kinds of animals that can be allowed on the plane when compared to DOJ rules for example. Right now, a variety of animals are permitted on the plane and that results in airlines expending considerable amount of time when it comes to unusual or untrained animals.
Passengers wishing to travel with pets may be falsely claiming that their pets are service animals in order to avoid paying the fee charged by most airlines. Airlines have reported increases in the number of service animals on aircraft and have expressed concern that the increase is due in part to passengers falsely claiming that their pets are emotional support animals.
According to airlines, passengers are increasingly bringing untrained service animals on board aircraft thereby putting the safety of crew members, other passengers, and other service animals at risk.
Some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and have not received adequate behavioral training.
Current regulations are confusing. For example, service animals for those with physical disability get different treatment than service animal for those with psychiatric disabilities.
The Federal Aviation Administration Reauthorization Act of 2018, which we discussed here, mandated that the Department of Transportation conduct rulemaking proceeding to sort out this service animal/emotional support animal confusion.
An Access Advisory committee was formed by DOT to consider a whole bunch of issues but could not reach agreement.
A previous notice of proposed rulemaking was published and many comments were received, and so, the process has been moving along.
The current set up creates a market inefficiency, which requires carriers to forgo a potential revenue source.

The Proposed Regulations and What Further Comments Are Needed

The proposed regulations will define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here), found at 28 C.F.R. §§104, 36.104. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger.
Emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals because they are not trained to do work or perform a task for the benefit of an individual with a disability. Aligning this definition with DOJ’s ADA regulations decreases confusion for individuals with disabilities, airline personnel, and airports. That said, DOT is seeking comments on whether emotional support animals for individuals with disabilities should be regulated separately and distinctly from service animals. DOT is seeking comment on how to deal with the situation where an emotional support animal user with a mental health disability has trained their dog to do work or perform a task to assist them with their disability thereby transforming the animal into a psychiatric service animal. DOT is also seeking comment on whether emotional support animals are more likely to not behave (I can’t imagine that isn’t the case because of their lack of training, but I don’t know that for sure). DOT is also seeking comment on how limiting emotional support animal to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. DOT’s current understanding is that dogs currently represent 90% of service animals transported on aircraft with cats coming in second. So, DOT is looking for information on how people who rely on emotional support animals would be impacted by the rule.
A passenger would be limited to one emotional support animal.
A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species used by individual to mitigate disabilities both on and off aircraft. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.
Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability. If the regulations wind up as they are now, that person will not be able to do so in the future). The department is seeking comment with respect to limiting service animals to dogs.
Dog breed restrictions are out. DOT said as much in their final statement of enforcement priorities regarding service animals. DOT’s policy has been to require airlines to conduct individualized assessment that a particular service animal based upon the animal’s behavior or health rather than applying generalized assumptions about how a breed or type of dog is expected to behave. Under this policy, DOT allows airlines to refuse transportation to dogs exhibiting aggressive behavior and posing a direct threat to the health or safety of others regardless of breed. Also, DOJ rejects outright bans on service animals because of their breed in their final implementing regulations. For example, DOJ has advised municipalities that prohibiting specific breeds of dogs is out when it come to a service animal unless the dog poses a direct threat to the health or safety of others, which is a determination that has to be made on a case-by-case basis.
DOT recognizes that the airplane is a unique environment. Therefore, comment is sought on whether breed restrictions are justified in the airplane context. Also, comment is sought on whether allowing airlines to conduct an individualized assessment of a service animal’s behavior in order to determine whether the service animal poses a direct threat is an adequate measure to ensure aggressive animals are not transported on aircraft.
The proposed rule treats psychiatric service animals the same as other service animal trained to do work or perform tasks. The change not only harmonizes DOT’s regulation with DOJ’s ADA service animal definition, but also eliminates a weak rationale for having a different regulatory requirement for users of psychiatric service animals. That is, DOT believes that justification for treating service animal users with mental or emotional disabilities differently from service animal users with other disabilities is currently lacking.
A service animal will have to fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap. While it is absolutely true that many large service animals accompany individuals with disabilities on aircraft, particularly for those individuals with mobility impairments, those animals are often trained to fit in the small spaces. Where an animal is too large to fit in the passenger’s foot space or placed on the passenger’s lap, DOT proposes to require airlines to seat the passenger traveling with the service animal next to an empty seat within the same class of service if such a seat is available. If no empty seats are available to allow a passenger to travel with the service animal in the cabin or the passenger’s scheduled flight, DOT proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free or to transport the passenger on a later flight with more room if available. DOT is seeking comment on this.
Service animals will have to be harnessed, leashed, or tethered unless the device interferes with the service animal’s work or the passenger’s disability prevents use of those devices. In that case, the carrier has to permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. Such a requirement is essentially the same as to what is found in DOJ’s final implementing regulations at 28 C.F.R. §§136(d), 36.302(c)(4).
Under the proposed rule, an airline can decide that an animal is not a service animal if it is not under the control of its handler. That is a bit different from DOJ’s approach, which says the service animal may still be a service animal that can be excluded if it is out of control or the animal’s handler does not take effective action to control it.
DOT’s air transportation service animal behavior and attestation form, which airlines may require passengers with disabilities seeking to travel with the service animal on aircraft, includes a statement that the passenger understands the animal must be harnessed, leashed, or tethered unless the passenger is unable because of a disability to do so.
A handler is defined as a qualified individual with a disability who receives assistance from a service animal doing work or performing tasks directly related to the individual’s disability, or a safety assistant, as described in 14 C.F.R. §382.29(b), who accompanies an individual with the disability traveling with a service animal. The service animal handler has the responsibility for keeping the service animal under control at all times and for caring and supervising the service animal, including toileting and feeding. A service animal trainer traveling with a trained service animal not serving as a safety assistant for passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, will not be considered service animal handlers under the proposed rule. The department seeks comment on its decision to define service animal handler in this way. It also seeks comment on what impact, if any, it’s exclusion of third parties as service animal handlers might have on individuals with disability traveling on aircraft with the service animal. The DOT is also seeking comment on the proposed regulations regarding the animal must be under the control of the handler either via restraint device or by voice. It also seeks comment on whether in cabin pet carrier consistent with FAA regulation should be included in the rule as an optional service animal restraint device if the final rule recognizes emotional support animals.
With respect to documentation that the animal is a service animal, the proposed rule does the following: 1) require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT proposes to allow a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger with traveling with the service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. DOT is seeking comment on whether airline should be allowed to create their own forms or if uniformity is more helpful.
They DOT air transportation service animal behavior and training and attestation form is completed by the passenger and provides assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability. It also provides assurance that the animal has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. DOT believes that the form serves as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals as an individual is less likely to falsify a federal form. The DOT is seeking comment on ways to reduce any burden on individuals with disabilities traveling with service animals and is seeking comment on a variety of concerns, including: 1) what ways are out there to reduce the burden that the DOT’s behavior and training form would have on passengers with disabilities; 2) should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights; 3) what medium should airlines use (hardcopy, electronic, email), to provide and collect the form passengers with disability; 4) are there privacy concerns airlines should consider; 5) do the questions in the form help airlines determine whether an animal has been adequately and properly trained; 6) does the form adequately educate passengers on how a service animal is expected behave, the consequences of misbehaving, and the seriousness of falsifying the DOT form; 7) should the airline be allowed to require only emotional support animal user to complete such a form if the department were to continue to require airlines to transport emotional support animals; and 8) does the general content and layout of the form makes sense.
The actual service animal behavior and training attestation form contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be under the control of the handler either via restraint device or by voice commands; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; and 5) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
DOT also proposes to allow airlines to require passengers to submit to the airline a DOT service animal health form completed by the passenger’s veterinarian. The form, which is to be completed by the veterinarian, describes the animal, indicates whether the service animal’s rabies vaccination are up-to-date and whether the animal has any known diseases or infestation, and states whether the veterinarian is aware of any aggressive behavior by the animal. The form will be valid for one year from the date of issuance. DOT seeks comment on whether one year is too long or too short for the vaccination form to be valid and the reasons for any such belief. The form is modeled after a number of State certificate of veterinary inspection forms and the United States Department of Agriculture APHIS 7001 form. DOT seeks comment on a proposal to allow airline to require that passengers provide the vaccination form as evidence that the service animal has received a rabies vaccine and that the animal is not exhibited aggressive behavior known to the veterinarian. It also seeks comment on whether the airline can refuse transportation to a service animal based upon information contained in that form, such as where the veterinarian discloses on the form that the animal has a history of aggressive behavior or has caused serious injury to a person or animal). DOT also seeks comment on whether the form would be effective in ensuring that the traveling public would not contract rabies from a service animal should they be bitten. DOT also seeks comment on the burden such a form imposes upon passengers traveling with disabilities. DOT also seeks comment on whether the animal health form should be limited to emotional support animal user in the event DOT decided to continue to require airlines to transport emotional support animals.
The current rule allows airlines to insist on documentation that the animal will not need to relieve itself or can relieve itself in a way not creating a health or sanitation issue when going on a flight of longer than eight hours. The proposed rule would only allow the airlines to request a DOT service animal relief attestation form and nothing else. That particular form just certifies that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight. It also has a box saying that the handler is responsible for the cost to repair any damage caused by the animal so long as the airline charges passengers without disabilities for similar kinds of damage.
The proposed rule would prohibit airlines from requiring passengers to provide the DOT health, behavior and training and relief forms prior to the passenger’s date of travel and is seeking comment on that. The DOT is also seeking comment on whether using standardized DOT forms is the best way for airlines to collect data from passengers traveling with service dogs. Since aircraft are unique, DOT believes that a proposal allowing airline to require all service dog users to provide the DOT standardized form to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others makes sense.
The proposed rule, as mentioned above, prohibits airlines from requiring individual traveling with the service animal to provide the DOT issued forms in advance of the passenger’s flight because advance notice may present significant challenges to passengers with disabilities wishing to make last-minute travel plans that may be necessary for worker family emergencies. Airlines can require users of the service animal to check in at the airport one hour before the check-in time at the airport for the general public to process service animal documentation so long at the airline similarly requires advanced check-in for passengers traveling with pets in the cabin.
DOT proposed rule requires airline to make an employee training to handle disability related matters available in person at the airline’s designated airport location to process service animal documentation promptly.
The DOT seeks comments on a proposal to require airlines to try to accommodate passengers failing to meet the one hour check-in requirement so long at the airline can do so by making reasonable efforts without delaying the flight.
The proposed rule would make the species requirement the same for both U.S. carriers and foreign carriers.
Proposed §382.74 does something different than what the current regulations do. That is, it matches up with the two inquiry paradigm of the DOJ’s title II and title III regulations. That is, it says that airline can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks.
Proposed rule §382.75(e) requires that an airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
Proposed rule §382.79(c) that with respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
Proposed rule §382.79(e) says if an airline is going to deny transport to the service animal, the airline must issue a written statement for the reason for the refusal. That statement has to include the specific basis for the airline’s opinion that the refusal meet the standards for denying transport. Further, that written statement must be provided to the individual with the disability accompanied by the service animal either at the airport or within 10 calendar days of the refusal of transportation.
Proposed §382.80 prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

III

Thoughts/Takeaways

Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the proposed regulation brings needed clarity to the situation.
I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules.
The proposed regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
The proposed regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this would no longer be an issue.
DOT is asking for lots of comments on many issues. The proposed reg was published on 2/5. So, that means comments due in by April 5 or possibly 6 (you have to check to see if a Sunday for a due date affects anything). So, these regulations could very well change.
Emotional support animals are out. How many people will be truly affected by this decision is an open question. I would certainly like to know that, and DOT would like to know that too as they are seeking comment on that question.
While DOT is seeking comments on breed restrictions, I don’t think you will see DOT back down on that. That means Delta Airlines will have to end its restriction on pitbulls.
Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here. It brings needed clarity to the area to what was previously very confusing.
If an animal is not under the control of the handler, then it isn’t a service dog. This is a theoretical distinction but not necessarily a practical distinction from the ADA’s title II and title III DOJ regulations.
It isn’t clear to me how a person training an animal to be a service animal gets treated under the proposed rule. Airline travel is part of the training for service dogs.
The documentation approach seems balanced and simplifies things greatly. It will be interesting to see what happens during the commenting period.
Is a veterinarian really qualified to attest to a dog’s aggressive tendencies? Why would a person with a disability even submit a form from the veterinarian saying that the dog has been aggressive? What if the dog got aggressive because it was doing his or her job and a human element acted stupid?
Airlines can’t require the DOT standardized forms in advance.
DOT uses the two inquiries term found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries. Also, interesting to note that nothing in this section of the proposed regulation, unlike the DOJ regulations, says that the work or task performed by the animal must be related to the handler’s disability, though other sections of the proposed regulation do make that clear.
The regulations are exclusive. That is, airline can add additional restrictions beyond the regulation. That means, for example, Delta’s ban on pit bulls, which I believe is still in place, will have to end.
DOJ says it is seeking comments on how to deal with a person with a mental health issue who has trained his or her emotional support animal to do work or perform a task to assist them with the disability. I find this whole thing strange for two reasons. First, the emotional support animal at that point is a service animal and not an emotional support animal because it is engaged in recognition and response and has been trained to do so. Second, anybody can train a dog to be a service animal. So, I am not sure why commenting on this question is even needed. So, what DOT does in response to comments on this question will be interesting to see.
No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense?
This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.

DOT Final Statement of Enforcement Priorities Regarding Service Animals

August 12, 2019 by William Goren 1 Comment

Last week, I had the opportunity to attend the Olmstead at 20 conference held at Georgia State law school here in Atlanta Georgia. Hats off to Susan Goico who led the organization of the conference. It brought together leading people from all over the country who are doing the work of disability inclusion. It was absolutely fabulous, and I met a lot of great people. Some of whom I had already knew and had been in touch with, but had never met. Congratulations again for a great conference.

With respect to how I go about finding something to blog on, sometimes my pipeline runs really low. Sometimes, I get a whole bunch of things in my pipeline at once, and then I have to figure out which one to blog on. Today’s blog entry is one of those situations where a whole bunch of things wound up in my pipeline at once. After reviewing my pipeline and seeing what the legal blogosphere is up to, I felt I had no choice but to blog on the final statement of enforcement priorities regarding service animals issued by the Department of Transportation last week. My colleague, Richard Hunt, has already done a blog on this here. His blog entries are always provocative. He does go over what the rules say, and so much of what I say in this blog entry will overlap. Of course, my perspective is always very different. So here goes. My thoughts are contained throughout. That said, ¶ ¶ 20-22 contain entirely my thoughts.

The guidelines are voluntary. Well, not really. That is, this an enforcement guidance. So, it telegraphs to the airlines exactly how the Department of Transportation will proceed if it gets a complaint. Therefore, airlines would be wise to adjust accordingly, and DOT says as much in the guidance document. The voluntary part of it comes from understanding this blog entry, where we discussed Kisor v. Wilkie. As discussed there, Auer deference is barely hanging on. Since this document is a guidance and not formal rulemaking, it is anybody’s guess as to what kind of authority this document will be given. As such, compliance with this document is voluntary. Of course, failure to comply with the document will expose that particular airline to enforcement action. If the airline chooses to fight that despite having notice at to what the Department of Transportation is going to do, it will be up to the airline to convince a court that Auer deference is not warranted in this situation.
The guidance still makes what I feel is an arbitrary distinction between service animals for those with physical disabilities and service animals for those with psychiatric disabilities. The DOT responded to that by saying it would have to take rulemaking (a plan to issue a notice of proposed rulemaking will be forthcoming at some point), to change that since the regulations themselves have that distinction. In the meantime, I do believe DOT regulations making a distinction between psychiatric service animals and service animals for those with physical disabilities are arbitrary and in violation of the Administrative Procedure Act. I do understand why the DOT felt constrained not to change the distinction in this guidance. It is pretty clear from our blog entry discussing the current state of Auer deference that the DOT could not make such a change in a guidance. Rather, such a change will have to come from rulemaking. I do understand why a rational distinction could be made between a psychiatric service animal, a service animal for those with physical disabilities v. an emotional support animal. That said, putting together in one category psychiatric service animals, which go through an incredible amount of training, and an emotional support animal, which may have little or no training at all, makes little sense and to my mind and is completely arbitrary. Viewing the regulations in a historical context, I suppose I can see how the distinction evolved. However, we know a lot more about psychiatric service animals and service animals assisting people with disabilities than we did back then. The distinction between psychiatric service animals and service animals for those with physical disabilities is simply untenable.
The guidance uses the terminology of service animal, ESA (emotional support animal), and PSA (psychiatric service animal). However, while most of the time in the guidance DOT uses “service animal,” to cover a situation of a service animal for a person with physical disabilities, at other times it uses the term “service animal,” as a catchall category for service animals, ESA’s and PSA’s. That doesn’t help anything. It just really makes things confusing.
What wound up being this document received 94 comments, mainly from disability rights advocates and the airlines.
DOT will prioritize ensuring that the most commonly recognized service animals (dogs, cats, and miniature horses) are accepted for transport. Airlines will not be subject to enforcement action if they continue to deny transport to snakes, other reptiles, ferrets, rodents, and spiders. However, categorical refusal to transport other animals or species will subject airline to potential enforcement action. The emphasis here is, “categorical.” DOT also notes that an animal regardless of its kind it is can be barred from a flight depending on a variety of factors, two large; to heavy; poses a direct threat to the health or safety of others; or would cause a significant disruption in cabin service.
A single individual can travel with up to a total of three animals. The animals can be a combination of one emotional support animal and then a psychiatric service animal and/or what DOT calls a service animal. Airlines cannot put a limit on the total number of service animals/ESA on any flight.
Airlines cannot limit the number of passengers with a disability on a particular flight.
DOT will focus its resources on ensuring that airline do not require advanced notice for passengers with physical disabilities traveling with service animals unless the flight segment is for eight hours or more. The current regulations allow for advanced notice to be required with respect to emotional support animals and psychiatric service animals. DOT admits that the current regulations discriminate against passengers with psychiatric disabilities, but reserves that issue for future rulemaking.
Airlines can continue to seek credible verbal assurance that the passenger is an individual with a disability and that the animal is a service animal by asking a variety of questions. Those questions include question directed to the passenger’s need for service animal. For example, one question could be, “how does your animal assist you with your disability?” This sounds good in theory, but I have trouble understanding how this gets carried out as a practical matter, especially in the context of an animal flying on a plane.
Verification of the animal as an emotional support animal or psychiatric service animal in the lobby is perfectly okay but not for service animals assisting people with physical disabilities. DOT regulations require ESA and PSA users to check in one hour before the check-in time for the general public. DOT does say they intend to take action against airlines requiring passengers with physical disabilities using a service animal to check in at the lobby of an airport.
DOT does not intend to take action against an airline asking service animal user to present documentation relating to a service animal’s vaccination, training, or behavior, so long as it is reasonable to believe that the documentation will assist the airline in determining whether an animal poses a direct threat to the health or safety of others. That said, DOT admits that the regulations are unclear as to whether the regulations are violated if an airline requires additional documentation to determine whether a service animal poses a direct threat. Not helpful is that direct threat isn’t defined. In ADA parlance, we know what a direct threat is, and we have discussed that many times, such as here. However, when you are dealing with an individual traveling with an animal on an airplane in a highly stressful situation, trying to figure out whether that animal might be a direct threat has to be an extremely difficult endeavor.
DOT does not intend to take action against airlines asking ESA or PSA service animal users to present such documentation of vaccination, training, or behavior up to 48 hours before his or her flight. That said, airlines need to be careful that the documentation requirements are not being used to prevent passengers with disabilities from traveling with their service animals. That is, another way to think about it, is that DOT will be watching to see whether such policies screen out people with disabilities.
With respect to controlling a service animal for those with physical disabilities, an ESA, or a PSA on the plane, tethering and similar means of controlling an animal permitted by the ADA are one reasonable means of controlling service animals in the aircraft cabin. Other thing to be thinking about with respect to reasonableness include: the size and species of the animal; the rights of other passengers to enjoy their own foot space; and the continued ability of the animal to provide emotional support or perform a task while being restrained if kept in a pet carrier.
Breed restrictions are out. That is, Delta Air Lines recently put in a policy saying pit bull type dogs cannot fly on flights. DOT says airlines can’t do that as evidence doesn’t exist that an animal poses a direct threat simply because of the kind of breed it is. DOT continues to stand by its June 22, 2018 public statement from its enforcement office that a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act and such restrictions are inconsistent with current regulations. On the ADA side, we already know from this blog entry, that breed restrictions are out.
Airlines are perfectly within their rights to ban the transport of service animals for those with physical disabilities, ESA’s, and PSA’s that are younger than four months as the training service animals have to go through takes time.
Refusal of an airline to accept ESA’s or PSA’s over 65 pounds won’t wash and is prohibited by the regulations. DOT notes that airlines have other means of ensuring safety for large animals aside from banning them outright. For example, DOT regulations already allow an animal to be excluded if it is too large or too heavy to be accommodated in the specific aircraft at issue. Even so, a categorical ban is out.
DOT regulations clearly prohibit a policy of not accepting PSA’s on flights lasting eight hours or more. That said, airlines can require 48 hours advance notice and check-in one hour before the check-in time for the general public in order to accommodate any service animal on a flight scheduled to last eight hours or more.
Requiring that medical forms found on the airlines own website be the only forms that can be accepted for purposes of approving an ESA or PSA is out. That is, airlines may ask or encourage a passenger to request that a licensed mental health profession or treating the passenger fill out the airline’s own proprietary medical forms. However, if a different form is submitted meeting the requirements set forth in the regulations, airlines cannot reject the request for a PSA or an ESA.
DOT regulations are violated where an airline requires an owner of a service animal for a person with a physical disability to present documentation related to that animal’s vaccination, training, or behavior before the check-in time for the general public. Such conduct violates the advanced notice provisions of the DOT regulations and DOT will seek enforcement action.
Seems to me that this enforcement guidance tries to have it every which way. As a result, it just confuses the issue. It doesn’t help that DOT uses the term “service animal,” in two different ways throughout the document. The guidance is helpful in some respects and not helpful at all in other respects. As a practical matter, it is going to make the jobs of airlines much more difficult. It also continues the entirely unsupportable distinction between psychiatric service animals and service animals for those with physical disabilities. I understand why DOT thought that it could not erase that distinction because a guidance is not formal rulemaking, but nevertheless, the distinction is entirely arbitrary and simply not supportable.
It isn’t a cure-all to say that the DOT by regulation should only allow psychiatric service animals and service animal for those with physical disabilities to fly on airplanes and completely eliminate emotional support animals. Even there, how would such a system be put in place to ensure that the animal was a service animal? For example, one would have to be careful that such a system would not eliminate the ability of an individual to train the animal to be a service animal.
While we are comfortable with the concept of direct threat in terms of ADA matters, figuring that out for an animal about to fly on an airplane would have to be an extraordinarily difficult thing to do. It is entirely possible that an animal may never be a direct threat outside of flying on an airplane, but could be on the airplane itself because flying on an airplane is such an unusual and stressful situation. In fact, it is entirely possible that the owner of the animal itself, particularly where an ESA is involved, wouldn’t even know. That said, I do know places training service animals to assist those with physical or psychiatric disabilities will, oftentimes if not invariably, as part of their training, have the animals fly on airplanes. I don’t know if every place that does training for psychiatric service animals or service animals for those with physical disabilities take that step with respect to training their animals, but I do know that many, if not all, do.

Accommodating Nut Allergies

June 13, 2019 by William Goren 3 Comments

I know it has been awhile since I did a blog entry, but I have a really good excuse. The last day of May was my daughter’s last day of her freshman year in high school. Then, the following week dealt with chasing her around and also going to Portland Maine for the ABA Law Practice convention. Beautiful country up there. Then, when I came back, I had to make sure that my daughter had everything she needed and was all packed to go off to overnight camp for four weeks in the Georgia mountains. It is her second year there, and so we are optimistic that she will have an even better time than last year, and she liked it a lot last year. I got her off the camp yesterday morning. So, my wife and I are now empty-nesters for the next four weeks.

Today’s blog entry is a twofer. That is, one Department of Transportation letter and one case. In both cases, the plaintiffs were represented by Mary Vargas of the law firm Stein and Vargas. Full disclosure: I refer probably three cases a month to Mary. She and her firm do fabulous work, and it is not unusual for me to blog on her cases. Also, with respect to the case that we are going to discuss, my colleague Richard Hunt, beat me to it here. Richard’s blog entries are always provocative. He and I are going to be presenting on two different webinars in Dallas, Texas, on June 26 and June 27. The difference in our perspectives should make for a very lively webinar. The two webinars will discuss the whole deal with service animals and emotional support animals under federal laws and separately, the wild west of Internet accessibility litigation. With respect to signing up for the first seminar dealing with animals under federal laws, you can do so here if you are a member of the Federal Bar Association and here if you are not. As usual, the blog entry is provided into categories and they are: DOT letter facts and holding; DOT letter takeaways; JD v. Colonial Williamsburg foundation introduction and facts; majority reasoning vacating summary judgment and remanding case for further proceedings; dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. This blog entry is unusual in that you might get away with respect to the JD v. Colonial Williamsburg sections of the blog entry just reading the facts and the takeaways. I don’t recommend it, but it’s possible as the thought/takeaways section evolved into something rather different this time.

DOT Letter Facts and Holding

May 21, 2019 letter from the General Counsel’s office of the US Department of Transportation involving American airlines and a person with severe peanut allergies.

This matter involved a seven-year-old girl with a severe allergy to peanuts, tree nuts and seeds and at risk of anaphylactic shock if she is exposed to or ingests these allergens. Accordingly, upon arrival at the airport to take an American Airlines flight, her father identified her daughter’s severe food allergy to an agent and requested pre-boarding in order to wipe down their assigned seats and tray tables. The American Airlines agent refused the request to pre-board. Also, it was alleged that the agent became hostile when the family identified the disability as a food allergy. A similar set of occurrences occurred in advance of the return flight from Charlotte to Portland.

American Airlines asserted that unlike some carriers, it doesn’t serve peanuts. However, it does serve other nut products. While the airline cleans its aircraft regularly, those cleanings are not designed to ensure the removal of nut allergens nor is its air filtration system designed to ensure the removal of nut allergens. Finally, American Airlines indicated that other customers can bring peanuts or tree nuts on board. Subsequent to the complaint being filed with the Department of Transportation, American Airlines amended its pre-boarding policy to allow pre-boarding for nut allergies effective December 2018.

Based upon the above facts, the Department of Transportation concluded that passengers with severe nut allergies are passengers with disabilities for purposes of the Air Carrier Access Act. Further, when a passenger with a severe allergy asks for pre-boarding to wipe down seating surfaces, that passenger is requesting additional time to be seated because from the passenger’s perspective, the seating area cannot be safely access unless totally wiped down. Accordingly, the Department of Transportation believes that when an airline fails to allow passengers with severe nut allergies to pre-board to wipe down seating services, 14 C.F.R. §382.93 is violated, and therefore, American Airlines gets a warning from the Department of Transportation.

DOT Letter Takeaways

14 C.F.R. §382.93 requires carriers to offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, store accessibility equipment, or be seated. Department of Transportation is going on record here that nut allergies are a disability.
Since Delta basically owns Atlanta, has 80% of the gates I have read, Delta is pretty much the option for flying out of Atlanta. Southwest does have a hub here, but I can never get used to the cattle call on Southwest. Also, I have always enjoyed the Delta experience. That said, I know Southwest has a lot of fans out there. What I am trying to say is that Delta is one of those airlines offering nuts on its flights. I happen to love nuts, and they can be healthy too. In fact, just last week, on my way to and back from Portland, Maine, I had almonds as my snack with my usual tomato juice on ice. It would be hard to say how many people on Delta choose nuts for their snack. It would make sense that this family would choose an airline not offering nuts. I suppose this family would have to fly as a group to ensure that a person sitting next to their daughter does not eat nuts. Apparently, the aircraft filtration system works for the daughter so long as her area is wiped down. That may or may not be true for everyone.
The Air Carrier Access Act, as we have discussed here, contains no private cause of action. So, it is remarkable that an attorney of Mary’s stature took on the filing of a matter with the Department of Transportation.

III

J.D. v. Colonial Williamsburg Foundation Introduction and Facts

As I mentioned above, I was first alerted to this case by Richard Hunt’s blog entry on it. I know Richard quite well. His blog entries are always very thought-provoking. He is also extremely knowledgeable about title III of the ADA and the Fair Housing Act as well. He and I communicate regularly. It also is not unusual for he and I to discuss the same cases since our perspectives are so different from each other. The particular blog entry where he discussed this case was so thought-provoking that I had people encouraging me to write my own blog entry on this. Finally, I have warned Mary that this blog entry may not go precisely as she would like, and she was okay with that. Even so, this blog entry has a different take on the case from Richard’s. I do hope you can join us for our webinars in a couple of weeks. I have never actually met Richard in person, and I am looking forward to doing so.

Facts:

JD is an 11-year-old boy suffering from several health problems and experiences a host of symptoms whenever he ingests gluten. Those symptoms include: significant constipation; abdominal pain; foot pain; numbness; cognitive impairment; elevated liver enzymes; and temporary loss of consciousness. The diagnosis is either celiac disease or non-celiac gluten sensitivity. For such a condition, the only medically accepted treatment is a strict gluten-free diet, and JD’s physician is of the opinion that a gluten-free diet is medically necessary for JD. Further, JD’s parent testified that his health significantly approved once he is on a strict gluten-free diet. However, whenever he accidentally ingests gluten even in trace amounts, the symptoms come crashing back. Accordingly, JD’s parents regularly prepare his food and use separate tableware to ensure that he can participate in school parties, celebrations, and meals to the greatest extent possible. Although there are some restaurant his parents do trust, in general, they no longer eat out as a family due to the risk of gluten exposure.

The school went on a field trip to Colonial Williamsburg. That trip included dinner at Shields Tavern. The restaurant has a policy against allowing outside food into its restaurant subject to two exceptions: 1) parents can bring baby food or snacks for infants and toddlers; and 2) patrons may bring cakes and wine for a band subject to a plating and corkage fee. Shields Tavern also appears to allow outside food at the discretion of the manager (emphasis mine).

Months before the trip, JD’s father informed the school that he and JD wouldn’t be eating at any of the restaurants but instead would bring their own food. However, nothing in the record suggested that the school relayed that message to the restaurant. In fact, an invoice from Colonial Williamsburg showed that the school placed an order for two gluten-free meals at Shields Tavern. The parties disputed whether those meals were intended for JD and his father.

When JD and his father arrived at the restaurant, they sat down at a two-person table. The father informed a server not to bring out any food for them. He then unpacked a cooler filled with plates, cups, and utensils, and began making a gluten-free chicken sandwich. Another server told JD’s father that he couldn’t bring in outside food because it would violate the health code. The father then asked to speak to the manager, who confirmed the policy, and insisted that they would have to eat their food outside. The head chef soon arrived and offered to prepare a gluten-free meal for JD.

The Virginia Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. That code also requires that food that is unsafe or contaminated must be rendered unusable and discarded.

According to Colonial Williamsburg, the head chef had already prepared the gluten-free meals based on the order placed by the school. JD’s father testified that the meals were not yet prepared and that the head chef offered to prepare them on the spot. The father alleged that he did not trust the tavern to be able to prepare gluten-free meals after preparing fried chicken meals for the other guests. The court said that the District Court properly viewed these facts in the light most favorable to JD.

Majority’s Reasoning Vacating the District Court’s Grant of Summary Judgment and Remanding the Case for Further Proceedings

The ADA was enacted to remedy widespread discrimination against people with disabilities and to provide clear, strong, consistent and enforceable standards addressing such discrimination.
Title III provides that no individual can be discriminated on the basis of disability in the equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
Prevailing under title III of the ADA means a plaintiff has to show: 1) he is a person with a disability within the meaning of the ADA; 2) the defendant owns, leases, or operates a place of public accommodation; and 3) the defendant discriminated against him because of his disability.
The parties did not dispute that Shields Tavern was a place of public accommodation. They did dispute whether JD was disabled and whether he was discriminated against because of his disability.
The ADA defines a disability as a physical or mental impairment substantially limiting one or more major life activities. Eating is a major life activity.
Viewing the facts in the light most favorable to the plaintiff, the district court correctly believed that JD’s impairment qualified as a disability under the ADA.
Any time you consider whether an impairment substantially limits an individual in a major life activity, that has to be looked at broadly in favor of expansive coverage. That approach is consistent with the purpose of the amendments to the ADA. Finally, the amendment to the ADA make clear that whether a major life activity is substantially limited has to be decided without regards to any mitigating measures, including learned behavioral modifications.
JD submitted extensive evidence about the serious consequences to his health when he ingests gluten.
While no one can eat whatever he or she desires without experiencing some negative health effect, persons with disabilities who have a disability due to severe dietary restrictions must be allowed to enjoy the protections of the ADA. Unlike a person with simple diet restrictions, JD must monitor everything he eats and there is no margin for error. Accordingly, the District Court correctly determined that a genuine dispute of material fact existed as to whether JD was disabled within the meaning of the ADA.
42 U.S.C. §12182 is the failure to accommodate provisions of title III of the ADA. That particular provision requires a place of public accommodation to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities in the absence of a fundamental alteration.
Proving up a claim under 42 U.S.C. §12182 involves showing: 1) whether the requested modification is necessary for the individual with a disability; 2) whether it is reasonable; and 3) whether it would fundamentally alter the nature of the public accommodation. For each element, the ADA requires an individualized inquiry based upon the particular circumstances of that case.
In determining whether a modification is necessary, the Fourth Circuit uses a like experience standard. That is, you start by considering how the facility is used by persons without disabilities and then consider what are the necessary and reasonable steps to provide guests with disabilities with a like experience.
The District Court erred by not drawing the factual inferences stemming from JD’s history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which he says shows that he was at a significant risk had they accepted the gluten-free meal offered by the restaurant.
In a footnote, the court could not see how sitting at a restaurant and not eating would have provided JD a like experience to the people without disabilities.
The necessary inquiry requires an individualized inquiry into the plaintiff’s capacity. Here, the evidence showed that JD repeatedly became sick when exposed to gluten at restaurants and that happened despite his parents best effort to ensure gluten-free meals.
While it is true that the restaurant averred that rigorous protocols existed for preparing gluten-free needles and that a jury might well reject JD’s evidence about the severity of his gluten intolerance and find that the restaurant’s protocols were sufficient to account for his disability, JD did put forth enough evidence to raise a genuine dispute of material fact as to whether that accommodation sufficiently accounted for his disability. So, the District Court’s granting of summary judgment that the accommodation proposed was not necessary must be overturned.
Whether an accommodation is reasonable is a fact specific inquiry looking to whether modification is reasonable under the circumstances. One of the things to think about is whether the cost of the accommodation does not clearly exceed its benefits.
JD pointed out that the restaurant allows parent to bring in outside food for toddlers and infants. The record also shows that two weeks after the events in this case, the restaurant granted a similar accommodation to a child visiting a different one of its restaurants. In that situation, the restaurant was notified before the child’s visit of severe allergies and Colonial Williamsburg determined that it could not accommodate him. So, it allowed the child to eat a homemade meal in the restaurant. The fact that Colonial Williamsburg granted a similar request speaks directly to the reasonableness of JD’s request.
Colonial Williamsburg’s argument that advanced notice is required makes no sense. Nothing in title III of the ADA or the implementing regulations mandate prior notice at a place of public accommodation. In fact, the regulations emphasized that advanced notice requirement are generally undesirable and should only be used when necessary to ensure the accommodation can be made.
In this situation, advanced notice wasn’t necessary because JD was not asking the restaurant to take any action or provide any additional services. Further, the restaurant allows outside food for toddlers and infants without prior notice.
With respect to the state health code provision, Virginia case law has never interpreted the provision. The Fourth Circuit believed that the provision was actually vague because while the provision does prohibit restaurants from serving food prepared in a private home, that provision doesn’t necessarily prohibit customers from bringing in outside food.
While a place of public accommodation can impose legitimate safety requirements necessary for safe operation per 28 C.F.R. §36.301(b), those safety requirement don’t always override a reasonable modification request. Further, it is not even clear here whether JD’s request posed a safety concern in the first place since there is no evidence of the risk of contamination from JD’s meal and the restaurant permits guest to bring outside food in other circumstances.
The defendant bears the burden of proof when it comes to fundamental alteration, and the Fourth Circuit holds that a genuine issue of material fact exists here as well.
A fundamental alteration is anything that is a modification to an essential aspect of the place of public accommodation’s program.
Food service is an essential aspect of the restaurant.
No evidence exists that Colonial Williamsburg has been deluged with request from people seeking to bring in outside food to the extent that it could not give individualized attention to the handful of requests that it might receive.

Dissenting Opinion by Judge Wilkinson

Judge Wilkinson also refers to 42 U.S.C. §12182(b)(2)(A)(ii), title III failure to accommodate provisions with respect to policy, practices, and procedures.
He also agrees with the three-part inquiry for handling cases under this regulation.
Necessity is determined with respect to the person with a disability ability to obtain full and equal enjoyment of the place of public accommodation. That means the ADA requires a customer with a disability to have an experience that is as equal as possible.
As long as a guest with a disability has meaningful access to a place of public accommodation, the ADA’s requirements are satisfied.
The availability of the restaurant’s gluten-free meal allowed JD meaningful access to the restaurant offering and renders the modification sought by JD unnecessary.
When JD arrived at the restaurant on a class trip, the head chef, Anthony Zurowski, offered to personally make and serve JD a gluten-free meal. Had JD accepted the offer, he would have been able to sit with his classmates inside the tavern and enjoy its educational offering alongside them. Instead, JD decided to eat a meal prepared at home. He was asked by the restaurant to do that at some nearby picnic tables. After finishing his home prepared meal, JD rejoined his classmates in the tavern for the remainder of their time there.
JD’s own expert testified that the meal offered by the head chef would have been gluten-free. Also, no dispute existed that the head chef had extensive training as a chef, including one-on-one training from Colonial Williamsburg’s head chef specifically focused on gluten-free meal preparation. Therefore, the head chef: knew how to ensure that JD’s gluten-free meal was not contaminated by any trace amounts of gluten; knew how to use a separate designated area to prepare the meal; knew how to sanitize the area and his utensils beforehand; knew how to use a fresh set of gloves and aprons; and knew to use a separate oven. Further, once the meal left the kitchen, no dispute existed that the restaurant’s procedures required that JD’s meal be labeled gluten-free and that the food be specially covered with a meal lit to avoid cross-contamination. Other facts include: the restaurant had extensive experience preparing gluten-free meals for patrons with disability similar to JD’s; over the past five years, the head chef had prepared roughly 4 to 5 gluten-free meals a day for a total of over 5000 meals without ever receiving a single complaint that the meals actually contain gluten; and JD’s father even admitted he had no reason not to trust the tavern’s kitchen staff.
If JD had accepted the restaurant’s genuine offer of a gluten-free meal, he would have had a virtually identical experience to that of his classmates.
The ADA does not require places of public accommodation to provide the precise modification requested by an individual with a disability. Instead, the ADA allows places of public accommodations the freedom to decide how to best provide meaningful access to patrons with disabilities.
Reasonableness must be evaluated with respect to the disruption of the restaurant’s business and the threat to safety occasioned by the modification. A policy allowing patrons to consume home prepared meals inside the restaurant with no advance notice affects a significant disruption on the restaurant’s business.
Allowing patrons to ignore the restaurant’s menu disrupts business. It would let people bring in their own meals, occupy the restaurant’s tables, and take time and attention of the servers, and otherwise divert resources from paying customers all without ever purchasing food from the restaurant itself. Such a policy denies the restaurant much needed revenue in an industry that is notoriously low margin. It also denies the servers gratuities they rely on to make ends meet as tips are usually calculated based upon the cost of the food ordered from the restaurant. Such disruptions are in no way mandated by the ADA.
Allowing patrons to consume home prepared meals opens the gate to all manners of cuisines without any respect for the restaurant’s historical theme. People can bring in food utterly inconsistent with the atmosphere provided by the restaurant. The smell of the food or even its appearance might spoil and undercut the experience for paying customers.
Food brought from home may pose a safety hazard to the restaurant’s other customers. The presence of outside food in the restaurant also increases the risk of provoking food allergies and sensitivities in other patrons.
The proposed modification is unreasonable because it imposes a vague and unmanageable standard on restaurants everywhere. Under the majority rule, a patron requests to be allowed to eat outside food will sometime be reasonable and other times not, thereby, putting managers in the middle of a crazy line drawing exercise without any defined criteria for them to apply. Under the majority rule, advanced notice is not even required. Therefore, restaurant managers would have to evaluate any disruption in the safety hazard of the customer’s outside meal on the fly with the specter of litigation overhead. Finally, under the majority rule, even restaurants that have made intense efforts to prepare gluten-free meals are strung up for liability. Such a rule could only be dreamed up in the judicial monastery.
While it is possible that Colonial Williamsburg may well prevail at trial, the majority reasoning has the flavor of a de facto per se rule. That is, restaurants must either allow patrons to consume food prepared outside the premises or they must justify that refusal at a costly trial.

Thoughts and Takeaways:

What is really going on here and how did we get here? In my opinion, what is really lurking here, is that title III of the ADA contains no specific requirements of an interactive process. If title III of the ADA contained an interactive process requirement, then you could argue that the restaurant and JD’s family had the obligation to engage in an interactive process. Such an interactive process may have included the chef specifically explaining and even showing JD and his family just how the gluten-free meal would be prepared and where it would be prepared. I don’t see why the family would necessarily have to enter the kitchen to do that. Even so, perhaps the restaurant could have taken the same health precautions that their cooks take prior to entering the cooking area so that they could see how the gluten-free meal would be prepared.
If an interactive process was required by title III, then if the restaurant specifically showed JD and his family how the gluten-free meal would be prepared and all the precautions they took, and the family nevertheless walked away from the accommodation, then you could say that the family blew up the interactive process. Under title I of the ADA and case law interpreting the interactive process, the party blowing up the interactive process bears the consequences.
Arguing that an interactive process applies to title III is not a stretch. There are cases interpreting title II holding the interactive process applies to title II. After all, how can you come up with a reasonable modification if you don’t engage in an interactive process?
The other problem here is that title III has no explicit provisions for a person with a disability being otherwise qualified/qualified. If title III had such explicit provisions, then you would look to the essential eligibility requirements of the business and try to determine whether a reasonable accommodation makes any sense. It isn’t a stretch to find an otherwise qualified requirement in title III because how can you figure out if a fundamental alteration exists without knowing the essential eligibility requirements of the business? Judge Wilkinson essentially takes this approach in his dissent. In fact, the majority and the dissent disagree on just what is the essential eligibility requirement at issue. The majority view is that the essential eligibility requirement is eating in the restaurant. However, the dissent’s view is that the essential eligibility requirement is eating food prepared by the restaurant. You get to different places depending upon how you characterize the essential eligibility requirement.
The ADA requires an individualized analysis based upon the particular circumstances of the case. The history that JD and his family had with other restaurants is historical, but shouldn’t be the deciding factor with respect to the particular restaurant. The key should be just what are the individual facts found in this situation. Again, importing essential eligibility requirements from title II and the interactive process from title I would solve a lot of his confusion.
Is there a title II case against the school? The parents notified the school that they needed a gluten-free meal. The school then may or may not have relayed the message to the restaurant. Since the essential eligibility requirements of the field trip was going to Colonial Williamsburg and having lunch at the restaurant, an argument exists that the school may have violated its title II obligations. I also don’t think that the plaintiff would have to exhaust administrative remedies either in an action against the school system given the case we discussed here.
I agree with the majority that the Virginia Health Code prohibiting food prepared in a private home from being used or offered for human consumption in a restaurant is vague.
If you are a restaurant and a person shows up with home food because of a gluten-free allergy situation, it would be a really good idea to engage in an extensive interactive process with the family to see if there is some way the restaurant can serve food to the family. It would also be a good idea for a restaurant that does prepare gluten-free meals for its customers to have rigorous protocols for doing so and to be able to explain and demonstrate them if need be.
I find the like experience standard a bit unwieldy. The problem with the like experience standard is that it most likely involves a person without a disability, a judge, trying to compare that experience to the experience of people with disabilities. That, is a very difficult task indeed.
The restaurant ran itself into a problem with its policy of allowing parents to bring in outside food for toddlers and infants. It ran itself into a bigger problem when Colonial Williamsburg granted a similar accommodation to a child visiting another of its restaurants. Moral of the story here: training, training, training, and more training is necessary across all of a company’s restaurants. Further, everybody should receive the same high quality training and the restaurant needs to be monitored to ensure that they are doing it right.
As a person with a disability, I get the whole advanced notice debate. I want to be able to show up anywhere I want without advanced notice and be accommodated. For example, I expect restaurant, movie theaters, and entertainment venues to have what I need if I just want to show up on the spur of the moment. On the other hand, sometimes it is more complicated than that. For example, as a consultant, I do some traveling. It is a real pain in the tuchas, but after making my hotel reservation at the hotel’s central reservation booking system and asking for a room for persons with disabilities, I always call the hotel directly and have an elaborate conversation with them about what it means to accommodate a deaf patron in the hotel room. If I don’t have that extensive conversation with the hotel itself, no way are the accommodations put in place when I walk into the room. Even if I have that conversation, it is anybody’s guess as to whether the room will accommodate me once I get there.
Another thing missing from this case, is the concept of direct threat, which we discussed here. Both the majority opinion and the dissenting opinion talk about safety requirements and reach different conclusions. To borrow from other sections of the ADA, direct threat needs to be based upon the best objective and current medical evidence. Of course, that is nice to say, but how that can possibly be carried out in the restaurant setting is a difficult question for sure, especially when a restaurant allows food to be brought in in some circumstances.
Fundamental alteration is an affirmative defense and the burden is on the defendant.
The dissent’s standard that a person with a disability is only entitled to an experience “as equal as possible,” as a person without a disability also troubles me. The reason it troubles me is once again you have a judge, probably one without a disability, deciding what is an equal as possible experience when compared to persons without disabilities. I would prefer the more objective meaningful access standard over an “equal as possible,” standard.
One thing that is happening more and more now is you are seeing litigation over what is necessary. Litigation over what is necessary is a recent development, but I would expect that trend to continue.
Absolutely agree that the ADA does not require places of public accommodation to provide the precise modification requested by the disabled individual. However, if that is the case, then the ADA must require outside of the employment context an interactive process. How else can this be figured out?
I don’t agree with the dissent’s view that people who bring in home-cooked meals will stiff the servers on tips. It doesn’t work like that. Oftentimes, a person is so grateful for being accommodated, that they will leave a tip as if they had purchased a meal even though they didn’t.
A petition for an en banc rehearing would not surprise me.
The majority keep referring to “because,” when it comes to causation. However, that isn’t the standard. For title III claims, the standard is on the basis of per 42 U.S.C. §12182(a).
Appealing this decision to the United States Supreme Court would be very dangerous assuming that the United States Supreme Court would take it. There are all kinds of wildcards here. For example, the Supreme Court could decide that on the basis and because mean two different things. Also, the Supreme Court could decide that title III incorporates an otherwise qualified/qualified element into it. They could also decide that title III incorporates an interactive process. It is not a given at all that the United States Supreme Court would necessarily decide with the Corporation when it come to this scenario, which is a nonemployment scenario. As I have mentioned before, persons with disabilities have fared very well at the Supreme Court outside of the employment context. So, if I was on the defense side here, I would probably pass on appealing to the United States Supreme Court. I might go for an en banc rehearing. Otherwise, I would take my chances at trial. Just too many things could happen at the Supreme Court with this particular case to risk it.