From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
Inquiries related to the Americans with Disabilities Act (ADA) and service or emotional support animals as workplace reasonable accommodations are among the most common and wide-ranging inquiries received by JAN’s ADA team. JAN contacts inquire about all sorts of issues pertaining to allowing dogs in the workplace. Aside from posing general rights and responsibilities access questions, employers ask about their responsibility to consider allowing emotional support animals into the workplace; how to handle situations when other employees are allergic to or afraid of dogs; animal access rights when employees work outside of the traditional office setting; what training and documentation can be required; and, best practices for notifying others about the impending presence of a dog at work – among many other issues. Anecdotally, it seems clear that the number and diversity of inquiries related to dogs in the workplace continues to grow, and the related issues rank among the top five general ADA inquiries received.
A question has cropped up a few times recently about service animals and breed exclusions. For example, can a service animal that is a Pitbull be excluded as an accommodation in the workplace simply based on its specific breed because of fears or generalizations about how that breed might behave? Sometimes local laws or ordinances ban breeds of dogs that have a history of unprovoked aggression or attacks, such as Pitbulls or German Shepherds. Employers are curious about how these exclusions apply in the work environment when an excluded breed is a service animal for an employee with a disability. Can employers use breed limitations to exclude certain dogs and deny this type of accommodation at work?
We must remember that, according to the Equal Employment Opportunity Commission (EEOC), title I of the ADA does not require employers to automatically allow employees to bring their service dog to work. This is different from the service animal access requirements of title III of the ADA, which apply to service animals in public accommodations and commercial facilities. Instead, allowing a service or emotional support dog into the workplace is a form of accommodation that employers must consider allowing when requested by an applicant or employee, barring undue hardship. This allows employers to make decisions about allowing animals into the workplace by assessing the individual’s need for accommodation, learning how the animal serves the individual, determining if the dog can behave appropriately, and making the decision that the accommodation will not pose a hardship.
Information about excluding specific breeds as service animals is not included in the ADA title I regulations or in EEOC formal enforcement guidance. However, the U.S. Department of Justice (DOJ) does address breed exclusions under the ADA title III regulations. While the title III regulations do not cover title I employment situations, the information still might be used to making decisions related to workplace.
Two sections of the ADA title III regulations address service animals and breed exclusions. The regulations can be found at https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm.
Excerpts of each section are included here and can be found under the definition of “Service Animal” related to Alerting to intruders and Breed limitations.
Alerting to intruders. “…if an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation cannot exclude the individual or the animal from the place of public accommodation.”
Breed limitations. “The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. … Public accommodations have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history—not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.”
Using the DOJ’s analysis of breed limitations, it is understood that excluding a dog based on fears or generalizations about the dog’s breed limits the rights of individuals with disabilities by making access decisions based on what is believed, as opposed to what is evident. How does this translate to the workplace? The same understanding can apply. It makes sense, given what we know from DOJ, that employers should not simply exclude a service dog as an accommodation solely on the basis of its breed. Rather, employers should determine that the particular dog behaves appropriately, does not exhibit aggressive behaviors, and does not evidently pose a direct threat. The breed alone may not be enough to demonstrate evidence of direct threat, but employers may ask questions and gather information about a dog’s behavior and history to ensure that an individual’s particular service animal (not simply the breed) does not pose a direct threat.
When access for a service animal is requested as a job accommodation and the need for the accommodation is not obvious, employers are not limited in asking questions about the individual’s use of the animal. This is different from the limitations on service animal inquiries under title III of the ADA. When an employee with a disability requests to use a service animal at work, the employer has the right to request documentation or demonstration that the service animal is trained, will behave appropriately, is housebroken, and will not disrupt the workplace. Employers are not expected to allow an animal into the workplace that poses a legitimate direct threat, cannot behave appropriately in the work environment, or is disruptive. When an employer has legitimate concerns about a particular breed of dog, it may be useful to ask some additional questions as part of the interactive process. For example:
- Has the dog ever exhibited aggressive behavior?
- Has the dog been known to injure anyone?
- Does the dog bark aggressively when approached by strangers?
- Describe how the dog behaves around groups of people, around children (if applicable), in small spaces, in noisy environments, around equipment, etc. Questions related to environmental factors will obviously be determined based on knowing the type of environment where the animal will accompany the individual at work.
Every day we receive challenging questions related to the ADA and dogs in the workplace. JAN consultants do their best to offer practical guidance to address the many issues employers face in this area of reasonable accommodation. If you have questions about this topic, contact JAN to speak with a consultant, or visit the A to Z of Disabilities and Accommodations section of AskJAN.org, and see the topic of Service Animals.