IAADP
International Association of
Assistance Dog Partners


Reasonable Accommodation and Assistance Dogs in the Workplace

Ed Eames

Apr. 2008

Federal and state laws use the term ďservice animalĒ to refer to the variety of species trained to perform tasks to help mitigate a qualified individualís disabling condition. In addition to dogs, miniature horses and Capuchin monkeys are examples of non-canine service animals trained to perform tasks. However, the vast majority of service animals are dogs, collectively referred to as ďassistance dogs,Ē the focus of this article.

Guide dogs are trained to help their blind and visually impaired partners safely negotiate the unseen environment. Hearing dogs alert their deaf and hard-of-hearing partners to sounds such as the telephone ring, door knock, smoke alarm, or the personís name being called. Service dogs work with people with disabilities other than blindness or deafness and provide a diversity of disability mitigating tasks. These tasks can include bracing to help an individual get in and out of chairs, support in walking or retrieving dropped or requested objects, helping to pull a wheelchair, alerting to a medical crisis, and reminding the partner to take medications.

As president of the International Association of Assistance Dog Partners, a consumer advocacy organization that represents over 2,000 people with disabilities working with guide, hearing, and service dogs, I am consulted on a wide range of access denial issues. Most are readily solved when those who initially declare, ďNo dogs in my restaurantÖor taxiÖor hospital,Ē become aware of existing laws. However, the most difficult cases to resolve within a reasonable time frame are those that involve employment of disabled individuals partnered with guide, hearing, and service dogs.

The Employment Issue

Employment-related issues are addressed by a number of laws, including state statutes, the Rehabilitation Act, and Title I of the Americans with Disabilities Act. While Title III of the ADA mandates access, the Title I requirement is less stringent. It provides only for reasonable accommodation to permit an employee to be accompanied by an assistance dog/service animal. As a result of this distinction, instances where access to the workplace has been denied because of the presence of an assistance dog has been a recurring problem. As the following four cases show, there is little consistency in the ways in which the laws have been applied.

The Chris Branson Case1

Dr. Chris Branson, a graduate of Northwestern University medical school, began working at the Lakeside Veterans Administration Health Care Center in Chicago in 1981. Four years later, she was paralyzed. Following rehabilitation for her spinal cord injury, Branson returned to work as a staff physician at the Lakeside Hospital in February 1986. Like many other paraplegics, she preferred using a manual wheelchair in order to maintain her upper body strength and independent mobility.

Facing increased fatigue in her upper extremities, and recognizing the added benefits to be derived from working with a canine assistant, Branson trained with a service dog in 1995. She was impressed with the skills of her new canine partner, Nolan, in picking up dropped or requested items, opening and shutting doors, and pulling her manual wheelchair. Prior to training with Nolan, Branson sought permission to bring Nolan into her workplace because, according to Paws With A Cause, the program that trained Nolan, training in the job setting is essential.

Unfortunately, the hospital administration failed to recognize Nolanís ability to improve Bransonís quality of life. Despite numerous memos from Branson and the Rehabilitation Institute of Chicago doctors, the hospital director remained adamant he would not allow a dog in the hospital. Repeated attempts to obtain an explanation went unanswered. The administration continued to ask Branson and her rehab doctors for more information about her medical condition, and to ask them to specify how a service dog could aid her on the job. After training with Nolan was completed, Branson was officially notified that Nolan was barred from accompanying her to work. Following mandated procedures, Branson filed a discrimination complaint with the Veterans Administrationís Equal Employment Opportunity investigation team. This internal review committee rubber-stamped the administrationís denial of access, finding that Branson had not proven she was denied reasonable accommodation, and that the decision to train with a service dog was a life-style choice and not work related. Branson hired an attorney and filed a complaint against the V.A. hospital in federal court.

Four years later, when the case was heard, the V.A. sought dismissal. In opposition, Bransonís lawyers asked the judge to permit the case to go to trial and enjoin the hospital from barring Nolan from the workplace. The hospitalís position was that Bransonís disability already had been accommodated, enabling her to continue working. It argued that the law does not require an employer to provide every accommodation requested by a disabled employee. In effect, the hospital was asserting the exclusive right to determine the nature of reasonable accommodation.

The case was heard by Judge Nan Nolan of the Northern District of Illinois, Eastern Division. On May 17, 1999, Judge Nolan decided that the V.A. had violated Section 504 of the Rehabilitation Act by denying Branson the right to be accompanied at work by her service dog. The judge found the V.A.ís view of reasonable accommodation was too narrow, and that its unwillingness to engage in a meaningful dialog with Branson about the potential negative impact Nolanís presence would have on the hospital was improper.

Judge Nolanís decision focused on the efforts Lakeside had made to accommodate Bransonís handicap, noting that Lakeside bore the burden of proving that an accommodation would impose undue hardship. Judge Nolan concluded that the only question was whether Bransonís requested accommodation was reasonable.

Judge Nolan found that, ďLakeside V.A.ís minimal effort in cooperation falls short of its responsibilities under the [Rehabilitation] Act. [It] never explained its objection, if any, to the service dog, never suggested any alternative accommodation, never claimed undue hardship, yet it continues to deny Dr. Branson the ability to use her service dog in the workplace.Ē

When Branson went to trial in July 1999, Mike Sapp, CEO of Paws With A Cause, and the local trainer who worked with Branson, testified about Nolanís training and ability to perform tasks in the workplace. Bransonís rehabilitation institute physicians testified about her deteriorating physical condition and the benefits of having Nolan on the job.

While the jury deliberated, Judge Nolan heard the V.A.ís appeal of her May 17 ruling that allowed the case to go to trial. As the chief of the hospitalís staff testified about the potentially disruptive effect Nolanís presence would have in the hospital, the judge pointed to Nolan and asked counsel if he was referring to the dog that had been lying quietly next to Bransonís wheelchair for the last three hours. The hospitalís head of engineering brought in detailed diagrams of the hospitalís elevators and patientsí rooms to demonstrate that a dog of Nolanís size would have difficulty maneuvering. Judge Nolan suggested that if gurneys fit into the hospital elevators and patientsí rooms, a Retriever should have no problem. Judge Nolan ordered the two sides to work out a procedure to permit Branson to bring her dog to work.

Meanwhile, after deliberating for two hours, the jury awarded Branson $400,000 and payment for all legal costs.

Despite Judge Nolanís order requiring access, it was not until December 2, 1999, that an injunction was signed barring the V.A. from denying access to Nolan. Ten days later, Nolan went to work with Branson without incident, permitting Chris Branson and Nolan to finally become a working team in the V.A. Lakeside Hospital. Because this case was brought under the Rehabilitation Act rather than the ADA and never exhausted the federal appeal process, we continue to see similar denials of access.

The Laura Otis Case

Laura Otis is an elementary school teacher in Orange County who began to feel the debilitating effects of a neuromuscular disease. She eventually needed a cane to aid in walking, and encountered difficulty picking up objects from the floor. To help retrieve dropped or needed items, such as her cane, a chalk holder, or board eraser, Otis hired a trainer to task train her dog, Zoe, and prepare her for public access. On June 9, 2003, the district gave permission for Otis, a teacher with more than 25 years experience, to bring Zoe to her classroom on a limited basis. Zoe could be brought to school no more than three times a week provided 24-hourís notice was given to the principal. Without adequate legal representation, she agreed to this plan.

One year later, the acting district superintendent informed Otis that Zoe would not be permitted at school for the 2004-05 school year. This decision was based on the school principalís stated belief that Zoe was not a bona fide service dog, but merely a pet.

The union provided Otis with legal counsel. However, because both the district superintendent and the principal have left the Irvine Unified School District, the case drags on. The case was initially scheduled for trial in 2007, but Otisí legal team elected to try mediation. The school district, dissatisfied with the recommended mediated settlement, asked for a second round of mediation. Otisí counsel agreed. As of March 2008, that legal process under state law continues. Otis has not been able to bring Zoe to class and, as a result, she continues to struggle with her disability.

The Sandy Stefan Case

Sandy Stefan, a single mother, graduated from paralegal school in January 2007. In August, she obtained a job in McComb County, Michigan, working in a traffic court where she processed ticket fines. At the time she was hired, because she feared she would not be offered the job if the traffic court magistrate knew, Stefan did not mention she was disabled and partnered with a canine assistant. The reality is that the presence of a canine assistant usually means no job will be offered.

After she had worked for a few weeks, she mentioned her Paws With A Cause-trained hearing dog, Ice, and said she would like to bring him to work. The magistrate told her not to bring him in until the matter had been resolved by the city attorney.

Stefan worked at the counter where traffic tickets were paid, and she explained that Ice would help alert her to her name being called and to the ring of her cell phone. The magistrate maintained that staff members could alert her to sounds and that the dog was not needed. Once again, management sought to dictate what accommodations were required.

Stefan explained the dog was fully trained and she needed Ice to get to and from work since Ice alerts her to sirens and the cell phone. The magistrate responded that getting to and from work was not the courtís concern. A meeting was convened with the magistrate, chief judge, and city attorney. Stefan did not have legal representation. The city attorney repeatedly asked Stefan about the degree of her hearing loss. They were concerned about liability if Ice bit someone or if a member of the public were allergic to dogs. Stefanís efforts to counter these arguments were unsuccessful.

The magistrate then suggested that Ice be placed in a carrying case or kennel located in the library in the back room of the office. She suggested that Stefan put a sign on the kennel indicating a dog was inside. Stefan consulted with Paws With A Cause and informed the court that the proposal was not a reasonable accommodation. It would have denied Stefan Iceís alerting services and jeopardized his training and their partnership.

After seven weeks on the job, with good evaluations, Stefan was fired. She filed a discrimination claim with the Equal Employment Opportunity Commission in November 2007. The federal agency said that her claim appeared meritorious and should proceed to mediation. Five months later, that mediation has not taken place.

The Sheryll Craven Case

Sheryll Craven lives in Auburndale, Florida, and has been employed by Winter Haven Hospital for 30 years. She works in the basement, where she handles calls dealing with a wide range of issues.

As a result of a degenerative neuromuscular disease, Cravenís mobility has become limited. She decided to train her own dog, Chelsea, and to have the dog certified by New Horizons Service Dogs, a Florida-based training program. Although such certification is not legally required, she felt this would give Chelsea greater credibility.

For two weeks, she brought Chelsea to work without incident. However, on one occasion while she was on an upper floor of the hospital, a hospital vice president questioned her right to be there with her dog. Immediately thereafter, Craven was told by her supervisor that her service dog was no longer welcome in the office.

As an alternative to Chelsea, Craven was asked to undergo occupational therapy and be fitted with orthopedic equipment. This accommodation, however, did not mitigate the need for the dog. Without her service dogís balancing and bracing tasks, Craven has been forced to walk using a support cane, which places her at risk of falling.

Facing a situation that she felt was discriminatory, Craven filed a complaint with the EEOC, and mediation took place on March 5, 2008. In order to keep her job and pension, Craven has agreed not to bring Chelsea to work. She felt forced to accept several other accommodations, which, once again, were not determined by her and her doctors, but by management.

Conclusions

In each of these cases, the employer believed it was entitled to determine the nature of a reasonable accommodation. That view was successfully challenged in Branson, where the court determined that Bransonís employer violated the law by not engaging in an interactive process to determine the nature of a reasonable accommodation. Employers must conform to the law and recognize they are not the sole arbiters of reasonable accommodation.

Not doing so can take a financial and emotional toll. Litigation can be extremely costly. While Branson was awarded $300,000, the maximum permited by federal law, the case cost the V.A. more than $1 million. And even after an employer makes large financial expenditures, it may turn out that the disability-related needs of the employee still have not been adequately accommodated. In contrast, permitting a dog in the workplace has little if any monetary cost. And the benefits can be enormous.

SIDEBARS

AN EMPLOYERíS BASIS FOR DENIAL

When an employee requests permission to bring his or her assistance dog to work as a reasonable accommodation for a disability, the employer should recognize that the only basis for denial of this request is:

(1) the employee is not a qualified person with a disability as defined by the ADA, the Rehabilitation Act, or state law;

(2) the assistance dog/service animal does not meet the definition of a service animal in the ADA or other relevant law;

(3) the presence of the service animal would place an undue burden on the employer; or,

(4) the presence of the service animal would interfere with the employerís ability to conduct business.

In these instances, the burden of proof is on the employer, not the employee.

DEFINITION OF ĎSERVICE ANIMALí

Following is the definition of ďService AnimalĒ from Federal Register, Feb. 22, 1991:

Service animal means any guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

1 Branson v. West (N.D. Ill 1999) USDC 97C 3538 , 1999 U.S. Dist. LEXUS 19173.

Ed Eames, Ph.D., is Adjunct Professor of Sociology at California State University, Fresno, and Professor Emeritus at Baruch College (CUNY). He is president and a founding member of the International Association of Assistance Dog Partners, http://www.iaadp.org. The author would like to acknowledge the assistance of Elizabeth Shea, J.D., partnered with service dog Remy.



Reprinted with permission from CPER No. 189 (April 2008). Copyright by the Regents, University of California.
The California Public Employee Relations Program (CPER) provides nonpartisan information to those involved in employer-employee relations in the public sector. For more information, visit http://cper.berkeley.edu.

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