For the last two weeks, we’ve discussed the subject of “fake” service dogs—dogs whose owners are willing to lie about having a disability so they can take their untrained and temperamentally unsuited pet dogs with them everywhere in public. We’ve heard opinions and personal experiences of dog professionals from the United States, Mexico, and Canada, and from service dog trainers and handlers “on the front lines” of public access.
This week, we’ll answer the question: What can businesses do?
(All italicized quotes in these first sections are from the ADA website, listed below.)
Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. For example, in a hospital it would be inappropriate to exclude a service animal from areas such as patient rooms, clinics, cafeterias, or examination rooms. However, it may be appropriate to exclude a service animal from operating rooms or burn units where the animal’s presence may compromise a sterile environment.
Under the ADA, service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.
Simple enough. Human with a disability, dog individually trained to do work or perform tasks to mitigate that disability. Dog must be under control.
When the dog is under control and behaving appropriately, businesses often opt not to question the dog’s status, especially if the human with the dog is following common-sense protocols of handling and hygiene. (Having the dog ride in a shopping cart unconfined or placing the dog directly on a table where people eat are two obvious “tells” that the accompanying human is using neither common sense nor good hygiene, for example.)
Ideally, any dog brought into a business that allows pet dogs is going to be “under control” around any other dog it may encounter there, too, as well as “under control” around all people on the premises.
Photo by Laura Bourhenne
If the business does want to know the dog’s status, here is what the ADA requires:
When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) Is the dog a service animal required because of a disability? and (2) What work or task has the dog been trained to perform? Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.
Two questions, both very simple:
▪ Is the dog a service animal required because of a disability?
▪ What work or task has the dog been trained to do?
That’s it, that’s all. No personal questions about the human or the human’s disability, no medical documentation, no training documentation or special ID for the dog, no asking that the dog perform the work or task.
Limited inquiries—only two questions.
But what if the dog isn’t under control?
What if the dog is defecating on the floor? What if the dog is barking loudly, lunging at other patrons, growling at the staff? What if other customers are frightened? What if there is a possibility that someone will get hurt?
What can businesses do?
A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.
Simple? Yes! Dog is out of control and the handler does not take effective action to control it? Handler is asked to remove the dog.
In other words, it’s not the human who is asked to leave, it’s the dog. The human must be offered the opportunity to obtain the goods or services of that business without the dog’s being there.
If the dog is eliminating inappropriately on the premises, again, it’s simple. The human is asked to remove the dog.
So if it’s so simple, why do some businesses choose not to address the issue of ill-mannered and out-of-control dogs on their premises? Here’s how some dog professionals and service dog handlers see it:
Summer Storm Kingery, DVM (Raleigh, North Carolina) Honestly, many businesses don’t do [what they should do] due to fear of social media mobbing and retaliatory violence—along with front-line staff rarely having any power as it is. At minimum wage, I sure wasn’t going to confront anyone over anything.
Lyssa Krabbenhoft (Pullman, Washington) It is their job. More businesses are starting to enforce the rules and you do not see any ill-behaved dogs in the building. My local Safeway has nicely stepped up and is a safe place to shop for disabled people with well-trained service dogs.
Debby McMullen (Pittsburgh, Pennsylvania) The problem is that businesses are scared. They don’t want to say the wrong thing and get sued.
Lyssa Krabbenhoft Read the ADA guidelines. They can call the ADA hotline if they have questions and speak to a DOJ employee. That is why I mentioned that businesses need to be educated.
I had a boxer puppy jump out of a cart and go after my service dog. I had to help the woman catch the six-month-old dog and get back it in the cart (no collar or leash). She openly admitted she only brought it in the store because it was too hot to leave it in the car and she was not disabled. A staff person got the manager, who said he would not ask for the removal of the dog even after the woman told him the dog wasn’t a service dog and she was not disabled. I asked what if my service dog had been injured or if I had been injured? He said it was not his problem.
Natalie Bridger Watson (Concord, North Carolina) The fact that businesses aren’t using the laws we already have in place to protect the public doesn’t justify making life more difficult for disabled people who work legitimate service dogs. If businesses aren’t removing dogs who [eliminate] on the floor or lunge at customers, why do we believe that they’re going to enforce more restrictive legislation any more reliably?
Janice Langbehn (Seattle, Washington), a recent law school graduate, wrote about one solution to the problem of differentiating “fake” from “real” service dogs. She says:
I wrote my Law Review article on this and a proposed regulatory change that would work in [the State of] Washington and, I think, would be a model for other states. The system is there, but there are no criminal or civil sanctions in most states. And [in] those [states] that have sanctions, they are not enforced.
In the interest of full disclosure, I am a person with a disability waiting for a service dog. As I wait for my service dog, I have noticed an apparent increase of dogs in places of public accommodation, including groceries stores, restaurants, and malls. Often, these dogs are being carried and put in grocery carts, or jump on members of the public.
On the face of it, it appears these dogs are not service dogs under the ADA. Thus, I believe raising awareness that using “pets” in public accommodation alone is outside the scope of the ADA. Additionally, giving states and municipalities a legal framework to enforce service-dog–only policies in places of public accommodation will legitimize service dogs needed by persons with disabilities.
Furthermore, this note is not an examination of the entire Act but rather [of] the ability of a person with a qualified disability to access places of public accommodation with their service dog. To ensure this is achieved, it is necessary to change how service dogs are identified in places of public accommodation. This could be achieved through a certification or identification of service dogs similar to the process already used for obtaining handicapped placards for cars. The process would be no more intrusive for a disabled person and hopefully would decrease pets without proper identification being brought into places such as grocery stores, restaurants, or movie theaters.
Before proposing these legal changes, it is important to understand how the ADA differentiates the different categories of service animals, and the available model laws already in place in some jurisdictions. Raising public awareness of the harm being created by pets being passed off as service animals will allow the general public’s willingness to say something, like when a car is parked in a handicapped spot without proper identification.
The ability to address service-dog access to places of public accommodation will need a multi-pronged approach. First comes comprehensive legislation that addresses the certification and licensing of a service dog, as well as civil penalties for individuals who violate the law. Next will be educating owners and employees of places of public accommodation so only certified service dogs are given access to the premises. Finally, there is the need to educate the public about service dogs, including what the difference is between a service dog and other support animals.
Lyssa Krabbenhoft believes that the solution to the problem of “fake” service dogs already exists in the ADA . . . if businesses are willing to do their part:
The ADA already has a system in place. If businesses were willing to do their part and ask handlers to remove dogs who are disruptive or not behaving, you would have a significant drop in fake service dogs. There is no certification recognized by the DOJ for service dogs, regardless whether the dog is from a program or owner-trained. Many of us have invisible or rare disabilities that programs do not train for. I would still have to put another eight months of training into a $10,000+ program dog, with the hope that the dog would be able to perform the rare medical alerts I need, and a long list of response tasks not typically taught.
I believe the ADA is fine as is for service dogs. Businesses need to be educated and follow up on their responsibilities. They can have any dog removed based on behavior that the handler cannot get under control. They need to ask the two gatekeeper questions. That would solve most issues.
My first service dog worked for 10 years, rode beautifully in the ambulance, was well behaved in frequent ER trips and in the hospital. He saved my life many times and allowed me to have a more normal life. We never had problems with business staff, managers, restaurants, doctor offices, or medical facilities. We had problems only from random strangers asking personal questions about my disabilities. (Unsupervised kids are a big problem for handlers.) We rarely had issues with other dogs, since I just avoided them in the store. I am on my second service dog now.
Natalie Bridger Watson does not support service-dog registration, certification, or more aggressive legal gatekeeping. Instead, she would like to see more businesses step up to ask the two questions and to be more “hands-on” about the rights of service dog handlers. Plus she would appreciate members of the general public being more “hands-off” about who’s disabled and who’s not.
I would rather deal with ten pets in vests than be stopped by every Good Samaritan who read an article and decided my SDiT [service dog in training] must be a fake because I am young, I am female, my disability doesn’t require a wheelchair, and I don’t “look disabled.”
Pets in vests are frustrating and sometimes dangerous, but fearing them doesn’t stop me from working my dog on a day-to-day basis. Fear of being constantly confronted by well-meaning people policing my public access does impact my life directly, also on a daily basis. I get dirty looks or outright confrontation for working my well-behaved dog because people assume I must be abusing the system. It was much worse when I was working my sheltie (young woman + small fluffy dog = we fit the faker profile), but even since washing him out of training and beginning to work my shepherd mix, it still happens. And it does not at all correlate to the dog’s behavior.
We have a perfectly good legal system in place already. It is already illegal to falsely represent a dog as a service dog. We have plenty of laws, and I think they’re appropriate to protect me. I do not support registration, certification, or more aggressive legal gatekeeping.
However I would love to see more business owners asking the two questions they are allowed to ask, being proactive about removing dogs who are a disruption to the public, and otherwise protecting the rights they already have. I think that would sort out the vast majority of the issues we’re having.
I’d also like to see the fraudulent “registry” and “certification” scam sites for ESAs [emotional service animals] and service dogs made illegal. That would drastically decrease the number of fakers I deal with without also being an impediment to legitimate teams. That is the only law change I support.
Right now, businesses are too hands-off with service dogs, and the general public is far too hands-on. I’ve been stopped by a business owner—who has the legal right to stop me and ask, “Is this a service dog individually task-trained to mitigate a disability?” and “What tasks does this dog perform?”) only three times in nearly five years.
I get questioned by other customers daily, either accusing me of faking or asking how they can fake a service dog, too . . . because they heard it’s easy and common. So what’s the harm? After all, their dog is never going to attack a service dog, and it sounds like everybody is doing it!
We don’t need more awareness about service-dog fraud—we need less hype.
I wish business owners and employees would be more proactive in protecting the rights they already have and that the uneducated public would stop taking it upon themselves to decide who is “really” disabled. From across the aisle in Walmart, you can’t see my brain and you can’t see my pancreas. What you can see is my dog’s behavior. Until that becomes a problem (which it won’t, because she’s a real service-dog-in-training and I’m a competent owner-trainer), my dog is none of your business.
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