The U.S. District Court for the District of Colorado recently approved a consent decree resolving a lawsuit filed by the Colorado Department of Justice against a Colorado Springs lawyer who refused to allow a woman, her husband, and her lawyer access to his office for a deposition because the woman brought her service dog. The lawyer feared the dog would ruin his newly installed carpeting. The Justice Department argued that the lawyer’s refusal to allow the woman and her dog access was a violation of Title III of the Americans with Disabilities Act (ADA).
Under the consent decree, the lawyer will pay the woman and her husband $40,000 in damages, pay $10,000 in civil penalties, and adopt and enforce a policy compliant with the ADA’s provision on service animals. Given the penalties and damages assessed against the lawyer, one can only hope the carpet was of really good quality. What follows is a primer for employers on federal and the applicable Colorado state law concerning service animals.
ADA Broadly Defines ‘Service Animal’
The ADA and the Colorado Anti-Discrimination Act (CADA) both prohibit discrimination against individuals with service animals. The law applies not only to allowing customers and others with service animals access to your business, but also to your employees. If a service animal is required for a disabled employee to do his job, you must accommodate him and allow the animal. New carpeting, fear of animals, and worries about allergies or distractions aren’t defenses for noncompliance.
Title I of the ADA requires covered employers to provide reasonable accommodation to employees and applicants with disabilities unless doing so would cause undue hardship on the employer. When faced with a disabled applicant or employee who uses a service animal to assist with his disability, the employer should consider as reasonable accommodation allowing the applicant or employee to bring a service animal to work so the employee can do his job. An obvious example would be a blind employee who requires a guide dog to perform the essential functions of his job. In that situation, you must allow the employee to bring the guide dog to work unless you can show that doing so would create an undue hardship on the business or a direct threat to others.
The ADA isn’t limited simply to allowing the blind to bring a guide dog to work. The Act addresses “service animals,” which include guide dogs and any other service animal trained to do work or perform tasks for the benefit of an individual with a disability. Service animals may include monkeys for quadriplegia, goats for multiple sclerosis, or parrots for psychosis. Indeed, miniature horses can be a reasonable alternative to guide dogs if the individual is allergic to dogs. For that reason, you should think twice before you say “neigh” to the blind applicant who requires the use of a miniature horse to perform the job for which he has applied.
Instead, as with all ADA accommodation issues, you and the applicant should engage in a discussion of possible alternatives to the miniature horse that would allow the individual to perform the job he is seeking. If an option exists — other than using a miniature horse in the workplace — that would be equally effective in enabling the individual to perform the job, you may require him to choose that option.
Employers, take note: Some (but not all) service animals wear special collars or have papers certifying or licensing them as service animals. However, collars, licenses, and certifications aren’t required, and you may not demand that a disabled individual produce such evidence before allowing his service animal on the premises. Under the ADA, you may ask only whether the animal is a service animal required because of a disability.
Because of the expanding number of animals that individuals are claiming as service animals, in 2008, the U.S. Department of Justice proposed regulations relating to service animals to provide some clear-cut guidelines about what kind of animals qualify as service animals. Under the proposed regulations, snakes, reptiles, farm animals, and wild animals are excluded from the definition of “service animals,” although final regulations have yet to be issued. To read more about the proposed regulations, visit http://www.justice.gov/opa/pr/2008/June/08-crt-498.html.
Colorado Defines ‘Service Animal’ Narrowly
The CADA, Colorado’s state law addressing disabilities in the workplace, takes a more limited approach to the types of service animals allowed in the workplace. The Act addresses only service dogs used to assist individuals who are hearing- or sight-impaired or who have other physical disabilities. It prohibits you from refusing to allow disabled workers to keep their assistance dogs with them at all times while at work.
With respect to the terms and conditions of employment, the CADA prohibits you from discriminating against a disabled person who is accompanied by a service dog. However, it provides no protection for a person with a disability who, for example, requires the need for an assistance monkey or for someone suffering from posttraumatic stress disorder (PTSD) who requires the assistance of a service dog to deal with his PTSD.
What’s an Employer to Do?
So what do you do when you’re confronted with a job applicant who shows up for the interview with his guide horse? While a state law might allow you to decline to hire the applicant, the ADA — in its current state —would prohibit you from automatically excluding the applicant for consideration. Only if you could show that accommodating the individual’s horse would cause undue hardship or create a direct threat to others in the workplace could you decline to consider the applicant for the position on the basis of his miniature horse. Instead, as with other types of accommodations, you are required to engage in a dialogue with the employee to determine whether allowing the horse in the workplace would be a reasonable accommodation or if other equally effective accommodations are available.
Ms. Jeffrey joined Holland & Hart as a summer clerk. Prior, Ms. Jeffrey served as a legal intern for the Wyoming State Treasurer’s Office, where she reviewed statutory language, assisted in preparing a draft of the State’s Investment Policy and reviewed real estate proposals. During law school, she volunteered at a domestic relations clinic, where she interviewed clients and assisted with the preparation of legal documents. If you have questions about service animals and disability discrimination laws, you can contact Keeya Jeffrey at (303) 295-8060 or kmjeffrey@hollandhart.com.
What about people who are allergic to animals such as cats and dogs. It’s not the animal, but the pet dander that many are allergic to. I am sure that it’s assumed that a service animal is cared for, bathed and brushed, to reduce or cut down on allergens, though what happens when they are not? How can the severely allergic complain before going into anaphylactic shock, without being frowned on for being an insensitive jerk?