Does My Peacock Have to Go Through the Metal Detector?

By NJSBA Staff posted 09-12-2019 12:49

  

Editor’s Note: The following article by Kathryn ‘Katy’ McClure and James E. Burden was published as part of New Jersey Labor and Employment Law Quarterly Vol. 40, No. 4, which is distributed to members of the Labor and Employment Law Section. To learn more about joining a section of the New Jersey State Bar Association, email us at [email protected].

Anyone who has traveled recently will have observed a tremendous increase in the number of ‘service animals’ in airport terminals. Most are frocked with bright red vests, declaring them to be ‘actual’ service or emotional support animals. On Jan. 31, 2018, a performance artist named Ventiko arrived at New Jersey’s Newark Liberty Airport with her ‘emotional support’ peacock, only to be turned away by United Airlines personnel. Ventiko had purchased a seat for her peacock so it could accompany her on a cross-country flight from Newark to Los Angeles, California.

A spokeswoman for Chicago-based United indicated the peacock didn’t meet guidelines for several reasons, including its size and weight. Spokeswoman Andrea Hiller said the issues had been explained to the passenger three times ‘before they arrived at the airport.’1

This begs the questions: “What is a service animal?” and “What are the guidelines regarding traveling with a service animal?” To answer these questions, both state and federal law need to be considered.

What is a Service Animal?

As a starting point, a distinction must be made between ‘service’ and ‘emotional support’ animals, as they are defined and treated differently under the law and entitled to different levels of protection and access.

New Jersey Law Against Discrimination

Under New Jersey’s Law Against Discrimination (LAD),2 persons who suffer from a disability are permitted to be “accompanied by a service or guide dog trained by a recognized training agency or school” and, with his or her dog, are entitled to “the full and equal enjoyment, advantages, facilities and privileges of all public facilities,” provided the person keeps the service dog in his or her immediate custody at all times and meets other statutory requirements.3 The LAD also prohibits a public facility from charging a person accompanied by a service dog any extra fee or payment to enter or use the facility.4 Moreover, the LAD prohibits discrimination against a job applicant or employee because the employee is accompanied by a service or guide dog, unless it can be clearly shown that a person’s disability would prevent such person from performing the particular job at issue.5

The LAD imposes civil penalties against any person who interferes with or denies a disabled person with a service animal access to any public facility and recognizes a private cause of action by the aggrieved person cognizable in the Division on Civil Rights or New Jersey Superior Court.6

Americans with Disabilities Act (ADA)

Although silent on the issue of service dogs in the employment context, in addressing access to local government services for individuals with disabilities under Title II and access to places of public accommodation under Title III of the ADA, the federal regulations define a service animal as follows:

...any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.7

The United States Department of Justice Guidance on the Americans with Disabilities Act similarly defines a service animal.8 Moreover, for purposes of access to local government services, the federal regulations expand the definition of service animal to also include miniature horses, providing in pertinent part that:

A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.9

Accordingly, for purposes of the ADA and LAD, trained dogs are the only animal species, except in certain cases of miniature horses, that are qualifying service animals entitled to access to public facilities. In contrast, emotional and/or psychiatric support or assistance animals are not qualified service animals for these purposes, as they receive no specific training to aid individuals with specific tasks and do not perform specific tasks for people with disabilities, but rather simply provide comfort and emotional support to their disabled owners. However, although ‘emotional support animals’ are not per se qualifying ‘service animals’ under the ADA or the LAD, in the employment and airport settings, disabled employees with emotional support animals who do not otherwise qualify as service animals may still be entitled to certain protections by way of reasonable accommodation and/or other legal protections.

Under What Circumstances May a Service Animal Accompany a Disabled Person?

As noted above, the LAD permits a disabled person to be accompanied by a service animal at any public facility.10 Likewise, the ADA requires modifications of policies and procedures to permit access in the context of local government services and places of public accommodation.

Service and Emotional Support Animals in the Employment Context

Service animals and emotional support animals in the employment context create a different set of issues and require separate analysis. New Jersey’s administrative code, while requiring employers to make a reasonable accommodation for disabled persons in order to allow them to work, does not specifically identify service animals as one of the examples of a reasonable modification.11 However, neither the LAD nor New Jersey’s administrative code rule out service animals, including emotional support animals, as a potential reasonable accommodation in the  workplace. Any public or private employer in New Jersey who is subject to the LAD and met with an employee request for the reasonable accommodation of utilizing a service or assistance animal should be prepared to engage in the interactive process with the employee to determine whether the employee’s reliance upon the animal’s service or assistance is a reasonable accommodation that will not present an undue hardship to the employer.12 The employer should consider, as one factor, its existing policy, if any, regarding allowing animals in the workplace.

Likewise, a New Jersey employee may request as accommodation permission to bring an emotional support or other service animal that does not meet the ADA’s public accommodations definition of a service animal, to work, such as Ventiko’s emotional support peacock. Because Title I of the ADA, which addresses employment provisions, does not have a definition of service animal, an employer must take such a request seriously, and engage in good faith in the interactive process with the employee about his or her reasonable accommodation request.13 This dialogue cannot be limited to otherwise qualifying service animals under the NJLAD and ADA definitions, but, rather, would need to include any medically necessary service animal the  presence of which in the workplace would then be subject to the usual reasonableness/undue hardship analysis. Similarly, the narrow ADA definition of service animal, which includes only trained dogs and miniature horses and specifically excludes emotional support animals,14 cannot be used to limit housing providers’ obligations to accommodate people with disabilities under the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1973.15 Individuals with disabilities may request a reasonable accommodation for any assistive animal, including an emotional and/or psychiatric support animal, under the FHA and Section 504.16 “In situations where the ADA and the FH[A]/Section 504 apply simultaneously (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), housing providers must meet their obligations under both the reasonable accommodation standard of the FH[A]/Section 504 and the service animal provisions of the ADA.”17

In Berardelli v. Allied Services Institute of Rehabilitation Medicine,18 the Third Circuit discussed the history of the ADA and service animal regulations, and stated:

When we consider these observations against the backdrop of our earlier discussion concerning the equivalence of ‘reasonable modifications’ and ‘reasonable accommodations,’ logic dictates that the service animal regulations, although technically interpreting the ADA, are no less relevant to the interpretation of the RA. In the latter context too, the general rule—subject to the same exceptions—is that a grantee must ‘modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability,’ 28 C.F.R. § 36.302(c)(1), and must ‘permit[ ] [such individuals] to be accompanied by their service animals in all areas of [the grantee’s facilities] where.. program participants... are allowed to go,’ id. § 36.302(c)(7). And just as in the ADA context, where no exception applies, the accommodation of such individuals’ use of service animals is per se reasonable.19

Service and Emotional Support Animals in Airports

Returning to Ventiko and the emotional support peacock—why are so many service animals seen in airports? The answer is simple—the Air Carrier Access Act20 requires the airlines to permit passengers to be accompanied by their service animals.21 The applicable federal regulations specifically state that:

(a) As a carrier, you must permit a service animal to accompany a passenger with a disability.
(1) You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft.
(2) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger using the service animal to provide documentation 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.22
(b) You must permit the service animal to accompany the passenger with a disability at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation.
(c) If a service animal cannot be accommodated at the seat location of the passenger with a disability who is using the animal, you must offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated.


Why are the service animals seen in airports adorned with bright red vests? Again, the answer is found in the federal regulations. Passengers are required to present evidence that an animal is a service animal, such as “...identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal.”23

Unlike limitations set forth in the ADA, pursuant to the applicable federal regulations, airlines are also required to recognize an assistance animal that does not provide a service to a passenger, but rather provides emotional and/or psychiatric support.24 However, an airline may deny a passenger access to an airplane with an emotional or psychiatric support animal unless the passenger provides the airline with current documentation (i.e., no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, a medical doctor specifically treating the passenger’s mental or emotional disability) stating the following:

1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);

2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination;

3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.25

Accordingly, in the context of airline travel, the scope of regulatory protections is broader; hence numerous service animals appear in airports.

Finally, why was Ventiko denied access to her cross-country flight from Newark to Los Angeles with her service peacock? The answer is, because the federal regulations do not require airlines to admit passengers to travel with ‘exotic’ service animals:

You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight’s destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.26

Conclusion

For further information, an instructive chart reflecting the various treatment of service animals under the Air Carrier Access Act and C.F.R., the DOJ Interpretation of the ADA, the FRA Interpretation of the ADA, the FTA’s Interpretation of the ADA, and HUD’s Interpretation of the ADA can be found at https://www.transportation.gov/sites/dot.gov/files/docs/P3.SA_.HUD%20 Matrix.6-28-6.pdf.

Will there ever be day when a service peacock is flying the friendly skies? Who knows. But for now, the service peacock remains grounded in the terminal.

Kathryn McClure is a partner at Smith Eibler, LLC in Holmdel. James Burden is a senior associate at Smith Mullin, P.C. in Montclair. Both practice plaintiff’s side employment law.

Endnotes

  1. See https://www.cbsnews.com/news/woman-denied-emotional-support-peacock-on-united-flight/.
  2. N.J.S.A. 10:5-1, et seq.
  3. N.J.S.A. 10:5-29 (emphasis added).
  4. Id.
  5. N.J.S.A. 10:5-29.1.
  6. N.J.S.A. 10:5-29.5; 10:5-29.11.
  7. 28 C.F.R. § 35.104 (emphasis added); 28 C.F.R. § 36.302 (emphasis added).
  8. U.S. Department of Justice, Civil Rights Division, Disability Section Guidance Service Animals (available at:

https://www.ada.gov/service_animals_2010.pdf); see also, Department of Justice, Civil Rights Division, Disability Section Guidance Frequently Asked Questions about Service Animals and the ADA (available at: https://www.ada.gov/ regs2010/service_animal_qa.html).

  1. 28 C.F.R. § 35.136(i)(1). In so doing, however, the Code of Federal Regulations provides that a public entity can consider the following factors when deciding whether to modify its policies, practices, or procedures to allow a miniature horse into a specific facility:

(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(ii) Whether the handler has sufficient control of the miniature horse;

(iii) Whether the miniature horse is housebroken; and

(iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

Id. at (i) (2).

  1. N.J.S.A. 10:5-29.
  2. N.J.A.C. 13:13-2.5.
  3. See Victor v. State, 203 N.J. 383, 415 (2010) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-18 (3d Cir.

1999)).

  1. Id.; compare N.J.A.C. 13:13-2.5 with 42 U.S.C. § 12111(9).
  2. 28 C.F.R. § 35.104.
  3. See U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, FHEO Notice: FHEO-2013-01, April 25, 2013, Subject: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs (available at https://archives.hud.gov/news/2013/servanimals_ntcfheo2013-01.pdf).
  4. Id.
  5. Id. at 1.
  6. Berardelli v. Allied Instit. of Rehabilitation Medicine, 900 F.3d 104, 120 (3rd Cir. 2018).
  7. Id. Berardelli, 900 F.3d at 120 (citing, Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1064 (5th Cir. 1997); Alboniga v. School Board, 87 F. Supp. 3d 1319, 1344 (S.D. Fla. 2015); cf. Bronk v. Iineichen, 54 F.3d 425, 429 (7th Cir. 1997)).
  8. 49 U.S.C. § 41705; 14 C.F.R. § 382.117.
  9. See 14 C.F.R. § 382.117.
  10. 14. C.F.R. § 382(a).
  11. 14 C.F.R. § 382.117(d).
  12. 14 C.F.R. § 382.117(e).
  13. Id.
  14. 14 C.F.R. § 382.117(f).

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