Service dogs play a pivotal role in the lives of many individuals with disabilities, acting as their lifeline in countless situations. Given their importance, it's crucial for people to know their rights when it comes to these trained companions, especially in places of public accommodation and housing. Understanding the legal landscape surrounding service dogs is vital. Those with disabilities deserve to live without fear of discrimination, and it's imperative for facilities and establishments to understand and respect their rights.

The Legal Background:

By way of the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), service dogs are widely acknowledged as reasonable accommodations for those with statutorily recognized disabilities. This recognition extends across the nation, covering a range of establishments, both public and private.

Should anyone find themselves denied these rights, they can legally bring forth a lawsuit for failure-to-accommodate. The range of potential damages is extensive, from recovery for emotional distress and other compensatory damages (like expenses that arose due to the denial) to punitive damages based on the circumstances and the intent behind the denial. Significantly, victims might be awarded attorneys' fees, ensuring they can secure top-notch representation without bearing the financial burden.

For a successful claim, victims must substantiate five key elements:

1. Proof of a statutorily recognized disability.
2. Evidence that the discriminator knew (or reasonably should have known) about the disability.
3. The asserted accommodation (i.e., the service dog) should not pose undue hardship, making it reasonable.
4. The service animal must directly address the needs of the person with the disability, signifying its necessity.
5. There must have been a denial of the accommodation or a refusal to participate in the interactive process.

It's important to note that state laws can sometimes offer even more protection to victims. For instance, the New York State Human Rights Law expands on the federal definition of disabilities. Unlike federal law, it doesn't demand that an impairment substantially impacts a major life activity to be recognized. Given these intricacies, victims are advised to consult with a discrimination attorney before taking any action, apart from promptly documenting the 6 Ws of Discrimination: Who, What, When, Where, Why, and Witnesses. The process is far from simple.

Service Animal vs. Emotional Support Animal: The Distinction Matters:

It's pertinent to highlight the differentiation between a service animal and an emotional support animal. Under the ADA, this distinction becomes relevant in public places. Yet, under the FHA, both these categories are considered viable reasonable accommodations. Some states, like New York, recognize rights to emotional support animals at public places as well. 

The bone of contention here lies in the inherent definitions. As per the Code of Federal Regulations, a service animal is explicitly trained to execute tasks or perform work benefiting an individual with a disability. This can range from physical and sensory disabilities to psychiatric or intellectual ones. In contrast, emotional support animals don't undergo such specialized training. It's essential to recognize that proving a service animal's training and the necessity of its skills requires evidence.

Relying on a conversation with a representative at the ADA is fraught with risk. The interpretation of the law should be grounded in statutes, regulations, and case law, not someone's subjective opinion. Facilities would do well to engage with their legal counsel in such situations and embark on the 'interactive process' as necessitated by the ADA.

The US Department of Transportation just added a new wrinkle into your post-pandemic travel plans if you have an emotional support animal. According to new regulations, effective January 11, 2021, carriers can consider emotional support animals to be pets and therefore, make no special accommodations for you even if you are emotionally disabled and need such emotional support animal to function. This is a particularly troublesome decision by the US Government for veterans suffering from PTSD and autistic individuals who both often need emotional support animals to function. 

The new regulations also have enhanced rules for disabled passengers with service animals. A service animal is now defined as a "dog, regardless of breed or type, 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." As a result, if you have a service monkey or peacock, too bad - these animals don't count anymore. Previously, they did as per the Department of Transportation's website and pursuant to a 2008 regulation (14 CFR 382.117).  

Even if your service animal is a dog, there are other rules that you still need to know. The Department of Transportation is created a form that can be required for travelers requesting an accommodation. This form requires that you certify that your animal is trained, has good behavior, and good health. Additionally, the form can be required up to 48 hours before flights or at the departure gate for animals that will be transported in the cabin. Finally, the regulations allow carriers to require service animals to be harnessed, leashed, or otherwise tethered while onboard. 

It is imperative that airlines train their teams about these new regulations and travelers are immediately noticed about their lessoned rights and heightened obligations.