Diversity & Inclusion

Who let the dogs out?

by J. David Kutch

A Palm Beach State College (PBSC) student received permission from the school to use a service dog trained to help her deal with the effects of her psychiatric disorders. However, she failed her classes and was escorted off the campus at times, apparently because two offices at the school had different positions on allowing the dog in class. Sick of the song and dance, the student ended up in court asking for permission to continue bringing her service dog to class. She won.

Although this case didn’t involve a dispute between an employer and employee, the court’s decision has some implications for your compliance with the Americans with Disabilities Act (ADA). It’s important to note that the accommodation would likely be the same in an employment case.

Policy reversal = problems

Kyra Alejandro was a student at PBSC from August 2007 until December 2010. In the fall of 2009, a disability services coordinator at the college referred her for a psychological evaluation to (1) determine whether she had any learning disabilities and (2) find out if she needed any special education and learning support. The evaluation led to Alejandro being diagnosed with post-traumatic stress disorder (PTSD), major depressive disorder, attention deficit hyperactivity disorder, and a learning disorder. The physician recommended special education services, counseling, and psychiatric services.

Alejandro began training her dog as a “psychiatric service animal” as soon as she received her diagnosis. The dog was trained “to establish eye contact, nip her fingers, or snort when he perceive[d] imminent panic attack.” Alejandro claimed she used the dog to participate in and benefit from her education.

The problems began in the spring 2011 semester when school officials started asking about the nature of Alejandro’s disabilities and her reliance on the service animal. They weren’t satisfied with her documentation and e-mailed one of her professors to tell him that they shouldn’t let her bring the dog to class. Alejandro provided more documentation and explained the animal’s training and usefulness in preventing panic attacks, but the school still refused to allow her to bring her dog to class.

At that point, Alejandro ignored PBSC’s instructions and continued to bring her dog to class, which resulted in her being escorted off campus and disciplinary proceedings being brought against her. She claimed that the situation caused her “debilitating anxiety and panic attacks.” She continued to provide documentation of her need for the animal’s assistance, and the school’s position shifted in May 2011, when it agreed to allow her dog to be on campus, attend class, and accompany her to other functions. During the spring semester, however, when she was unable to attend class and function without her dog, she received two “incomplete” grades and one F.

PBSC changed its position again in June 2011 and sent Alejandro a letter saying that she hadn’t demonstrated her need for a service dog. Alejandro then sued, asking the court to stop PBSC from refusing to let her bring her dog onto campus so that she could have a “meaningful opportunity to complete her class assignments and fully participate in her education.”

Injunction junction, what’s your function?

When someone asks a court to stop another person from doing something, she asks for an order called an injunction. For the type of injunction Alejandro requested, the court needed to look at four elements, and Alejandro needed to prevail on all four of them to stop PBSC from keeping her dog off campus. First, she needed to show that the ADA ultimately would allow her to have the dog on campus. Second, she needed to show that she would suffer “irreparable injury” unless the injunction was granted. Third, she needed to demonstrate that whatever harm she would suffer if the court failed to grant the injunction would outweigh the harm to PBSC if the injunction was granted. Finally, she needed to show that the injunction wouldn’t be “adverse to the public interest.” So how did it shake out? Let’s look at the factors in reverse order.

The court concluded that allowing Alejandro to bring her dog to school was “in the public interest.” The court also reasoned that it was illogical to conclude that PBSC would be harmed more if it granted the injunction than Alejandro would be if it didn’t since the school had already allowed her to bring the dog to classes. In fact, the court found that Alejandro would be “irreparably harmed” if she couldn’t bring the dog to class―it was satisfied that she truly needed the dog to attend class, and she obviously would suffer irreparable harm if she couldn’t attend class. The last three factors came down to commonsense conclusions. But what do the ADA regulations have to say specifically about service dogs?

Woof, woof

The regulations accompanying Title III of the ADA (which covers discrimination in public accommodations) define a service animal as “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.” Service animals also can be used to monitor medical conditions such as low blood sugar. If your attorney tells you that you are a “public entity” covered under this section of the ADA, then you are allowed to make inquiries to find out if an animal qualifies as a service animal. You may also inquire about how the service animal helps the individual deal with an identifiable disability―but you cannot require documentation (i.e., an official certification or license).

Note that employers are governed by Title I of the ADA, not Title III. Title I doesn’t provide a specific definition of “service animal,” but more often than not, courts are willing to use Title III’s definition. This is something your attorneys could fight about if you decided to push the situation into litigation. That’s the thing, though: In ADA cases, your compassion and flexibility toward employees with disabilities are what’s going to help you stay out of hot water. Kyra Alejandro v. Palm Beach State College, 843 F. Supp. 2d 1263 (S.D. Fla., November 7, 2011).


Indeed, the reasonable accommodation aspect of the ADA really does call for compassion, understanding, and flexibility from employers. If you are charged with failing to provide a reasonable accommodation for a disabled individual, your best defense in most cases will be to argue that providing the accommodation would have caused an “undue hardship” for your company. An undue hardship is more than a mere inconvenience― employers are expected to go well out of their way to accommodate employees with disabilities. You are allowed to ask for documentation, and if it is remotely acceptable, you won’t be able to get away with simply saying, “We don’t want a dog around the office.” PBSC argued that other students would be distracted by the presence of the animal. That argument didn’t work―at all.

J. David Kutch is a law clerk with Harper Gerlach PL.

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