Why Maine's Human Rights Panel Ruled Correctly that Man with "Service Dog" Was Not Discriminated Against

by Sharon Wachsler

The Bangor Daily News reported last week that a Dennysville man's complaint of discrimination was not supported by the Maine Human Rights Commission panel that investigated the incident. The issue arose when Kenneth Stanhope was asked by a manager at Helen's Restaurant in Machias for documents proving that his pit bull is a service dog.

BDN lays out the crux of the matter:

At question was whether Helen’s had asked questions of Stanhope that violated the Human Rights Act, which states that the only permissible questions to ask of a person who presents with a service animal are whether the animal is required because of a disability, and what work or task the animal has been trained to perform. 

Stanhope alleged that Helen’s manager had asked to see documentary proof that his pit bull, Sneg, was in fact a service animal, which an HRC investigator, Michele Dion, said was not allowed by the law. 

In its response, Helen’s Restaurant did not deny that documentation was requested, but said that Sneg had growled menacingly at one of the restaurant’s employees in the past, prompting the owner, who was not named in the investigator’s report, to question Stanhope. After Stanhope left the restaurant in frustration, the owner researched the state’s law and called Stanhope to apologize for asking for documentation.

As a member of the service dog community since 1998 and a service dog trainer, I applaud this ruling. The issue in the case of Steg, above, is not related to him being a pit bull. The issue is the dog's behavior.

A service dog is defined by the Americans with Disabilities Act (ADA) as a dog that has been individually trained to mitigate the effects of the handler's disability by performing tasks or working. More and more disabled people are bringing dogs into the community and identifying them as service dogs. In many cases, these are service dogs. What their breed or perceived breed is, is irrelevant. It doesn't matter if they are pit bulls, German Shepherd Dogs, Labrador Retrievers, or Poodles. What is relevant is their temperament, comportment and level of training. There are many excellent, well-trained pit bull service dogs.

A serious problem is that some dogs that are being referred to or dressed as service dogs by their disabled owners are not actually service dogs. Some of these dogs may be well-behaved pets who have not been tasked trained to mitigate the effects of the handler's disability. Other dogs, whether they have been trained in assistance tasks or not, cannot be service dogs because the handler cannot keep them under control. A service dog cannot be a "reasonable accommodation" if its behavior is disruptive to the place of business.

Here's a section from the Commonly Asked Questions page on service dogs from the Department of Justice:

10. Q: What if a service animal barks or growls at other people, or otherwise acts out of control? 

A: You may exclude any animal, including a service animal, from your facility when that animal's behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually. 

Although a public accommodation may exclude any service animal that is out of control, it should give the individual with a disability who uses the service animal the option of continuing to enjoy its goods and services without having the service animal on the premises. 

11. Q: Can I exclude an animal that doesn't really seem dangerous but is disruptive to my business? 

A: There may be a few circumstances when a public accommodation is not required to accommodate a service animal--that is, when doing so would result in a fundamental alteration to the nature of the business. Generally, this is not likely to occur in restaurants, hotels, retail stores, theaters, concert halls, and sports facilities. But when it does, for example, when a dog barks during a movie, the animal can be excluded.

A dog that is aggressive or reactive or that otherwise interferes with the normal workings of the business with bad behavior is not a service dog and must be removed by their handler. Further, unless this is an isolated episode -- such as the result of an acute medical problem that can be effectively treated and remediated -- this dog should not be asked to work in public again. Bringing a reactive or aggressive dog into public settings is not fair to the dog, the handler, or the public.

Unfortunately, many people don't know that aggression or other disruptive behavior (whining, howling, urinating, or defecating in a place of business) automatically strips the handler's right to access with that dog. The burden is on the handler, in these cases, to remove the dog, attempt to ameliorate any damage the dog may have done, and address the problem with the dog and/or the dog's veterinarian or trainer.

This is an area where perception of the law has not caught up with what the law actually requires. The case of "Steg" is all-too-exemplary; the handler filed a discrimination complaint even though he did not have access rights in this case, and some of the Human Rights Commission wanted to uphold his his so-called access rights to be accompanied by an aggressive dog.

For more information on this topic:

• New Hampshire Governor's Commission on Disability "Service/Assistance Animals" page 
• International Association of Assistance Dog Partner (IAADP)'s "Minimum Training Standards for Public Access"
• ADA.gov revised (2011) definition of service animals under the ADA

It behooves the disability community, including assistance dog activists and disability rights activists, to protect the rights of disabled handlers with trained service dogs. Part of this protection is to work against the culture of tolerance that allows disabled people to bring untrained or reactive dogs into public. I am hopeful that more rulings like the Maine Human Rights Panel's ruling will help clarify the legal access rights of disabled people accompanied by service dogs.