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.

Richmond man did not receive reasonable accommodate in eldercare housing

CentralMaine.com reports in "Richmond Eldercare home faulted by human rights panel" that the Maine Human Rights Commission voted in August that James Nichols of Biddeford was discriminated against when he was discharged from Richmond Eldercare Coalition housing instead of provided an accommodation to his disability.

According to the newspaper report, Nichols, who has PTSD and other disabilities and is a recovering alcoholic

was moved involuntarily to a different room at the home after living there a month, and the change triggered his post-traumatic stress disorder since the new roommate could drink alcohol and kept open containers of urine in the room. 

The report says Nichols told Gibbs the new living situation was “going badly” and he later told others he felt unsafe.

After a hospitalization, Nichols needed to be in a different room or with a different roommate. Other residents were not asked if they were willing to room with him. Instead, Nichols returned to the hospital for several weeks.

Assaulting an inmate is reasonable grounds to be fired, says Human Rights Commission

by Sharon Wachsler

Media coverage of the Maine Human Rights Commission rulings on disability discrimination complaints have been appearing pretty frequently lately. The Friday edition of the Kennebec Journal carried an article entitled, "Commission told Franklin County Jail guard not fired for disability."

Robert Shufelt of Jay was a corrections officer at the Franklin County Jail who was fired after he assaulted an inmate. Shufelt, who represented himself in the complaint, contends that he was fired because of a mental disability. According to the KJ article,

Shufelt argues in the commission report that another officer at the jail assaulted an inmate and wasn’t fired.

Hard to know which part of that argument is most problematic! (The other officer who assaulted an inmate was investigated, suspended without pay, and warned that if there was another incident, he would be fired.) The Commission said that Shufelt provided no proof that he was fired due to his mental condition.

Read the whole article here.

Baffling Decision by Maine Human Rights Commission

by Sharon Wachsler

Last week, the Kennebec Journal published the article, "Maine panel: No grounds for OOB official's claim of discrimination." Bill Robertson, former public works director of Old Orchard Beach, file a complaint with the Maine Human Rights Commission

alleging that he was discriminated against because of his hearing disability, and that then-Town Manager Mark Pearson retaliated against him by stripping him of sick leave benefits and not renewing his contract....

Granted, the whole situation with firings and rehirings and claims and allegations on all sides sounds confusing to untangle, as the Journal puts it:

Bill Robertson was fired and then re-hired last year during a tumultuous period that included the firing of the town manager and the recall of nearly the entire Town Council. 

However, the Human Rights Commission does not seem to be questioning whether audism and ableism were at play, just whether it was bad enough to be the cause of Robertson's firing:

[Robertson] said the discrimination and retaliation included Pearson making insensitive and degrading comments about his hearing, putting him on administrative leave, notifying him that his contract would not be renewed and stripping him of sick leave benefits. 

Robertson said Pearson repeatedly made comments about Robertson’s hearing disability in front of other town employees. 

The Human Rights Commission found that none of Pearson’s conduct was threatening toward Robertson and that the disability harassment claim was unfounded. 

“It may be that (the) town manager’s comments embarrassed (the) complainant because he drew attention to (Robertson’s) disability in front of others,” said an investigator’s report. “Objectively, however, the town manager’s comments did not rise above the level of occasional offensive utterances.” 

How many "offensive utterances" that "embarrass" an employee when his employer "draws attention to [the] disability in front of others" does the Maine Human Rights Commission think is an acceptable amount, I wonder. Read more about this wonky situation in the complete article.

Maine Human Rights Commission Supports Diabetic Belfast Firefighter's Disability Discrimination Complaint

The Bangor Daily News reports that the Maine Human Rights Commission, in a unanimous decision, is supporting firefighter/paramedic David Cobb's claim of disability discrimination by the city of Belfast. Ability Maine previously reported that caused had filed a discrimination complaint and the grounds for that complaint.

Investigator Robert Beauchesne found that the accommodation Cobb had requested was reasonable, and that two doctors agreed that changing sleep patterns is a factor in elevated blood sugar levels in diabetics. He found that Cobb had reasonable grounds to believe he was discriminated against, and on Monday, Feb. 24, all four commissioners present at the hearing agreed.

Read the complete story in the Bangor Daily News.

Maine Human Rights Commission Reverses Earlier Disability Discrimination Finding Against Camden Inn

The Bangor Daily News reported in early February that a Wisconsin couple who stayed at a Camden Harbour luxury inn had filed a complaint of disability discrimination with the Maine Human Rights Commission. Earnest and Susan Patnode came to Maine to celebrate Earnest's 86th birthday. He died a few months after their trip. Susan filed the complaint, the gist of which was that the "accessible" suite they were given had four steps to climb and had an entrance that was blocked by construction, requiring extra walking to get in and out.

The inn claimed that they did not have a sufficient understanding of Earnest's disability and that the entrance to the suite was not blocked. They also said they went "above and beyond" to try to accommodate the Patnodes.

An investigator for the Commission found evidence that discrimination had taken place, according to Maine laws.

In a follow-up article, BDN reported the Human Rights Commission cleared the Camden Inn, overturning the previous decision. Links for both articles are below:

Human rights panel clears Camden Inn of discrimination

Wisconsin woman claims Camden Harbour Inn discriminated against her and disabled husband

Maine Human Rights Commission says Belfast Firefighter/Paramedic Discriminated against Due to Diabetes

Last month the Bangor Daily News reported that Robert Cobb of Randolph was discriminated against by the city of Belfast when they refuse to accommodate his request to limit the number of overnights he worked due to medical reasons:

The city of Belfast denied that Cobb had a disability, adding that a doctor determined his blood sugar spikes were largely due to his own poor food choices and didn’t warrant any work schedule modifications, according to the report from investigator Robert Beauchesne.
“Complainant was placed in the position of having to endanger his health, and ignore his doctor’s advice, if he wanted to continue working for [the city],” Beauchesne wrote in the Jan. 24 report. “Under the circumstances, it was reasonable for complainant to decide that he had no choice but to resign in order to safeguard his health. Disability discrimination is found in this case.”

Read the complete article.

Leeds Woman Alleges Job Discrimination due to Hearing Impairment

According to an August 31, Bangor Daily News story, Agnes Farnsworth was let go of her seventeen-year volunteer job for Kennebec Valley Community Action Program when she requested that she receive communication via text message instead of phone, due to her hearing loss.

In March 2011, Farnsworth asked to receive text messages on her agency-provided cellphone instead of calls, due to her hearing loss, when instructions were relayed to her about passenger pickups and drop-offs.
That form of communication was used for two weeks then stopped. The agency’s transportation manager sent her a letter telling Farnsworth she was fired because “communication between staff and yourself (sic) has become almost impossible in regards to phone conversations and that is a very important part of our process,” according to a report filed by Michele Dion, an MHRC investigator.

Farnsworth's claim is being investigated by the Maine Human Rights Commission. Read the complete story at BDN Maine.

Proposed Laws Require Workplace Accommodations for Pregnant Women

The Kennebec Journal reported today that two bills have been introduced in the Maine legislature that seek to support pregnant women on the job. According to the article, the first, LD 830,

would require employers to make reasonable accommodations for pregnant women, such as allowing them to sit periodically even if they normally stand all day, or let them carry a water bottle, even if company policy prohibits it.

The second bill, LD 777 would permit employees who are breastfeeding to file a complaint with the Maine Human Rights Commission if their employer doesn't provide a suitable space for them to express milk. Employers already are required to provide a clean, private place for nursing mothers to express milk; making failure to do so a human rights violation would be new.

These bills have the support of the ACLU, women's groups, and pro-life groups, but others find the use of "reasonable accommodation" language problematic, saying that these bills would put pregnancy in the same legal class as disability:

James Erwin, an attorney [for] insurance company Unum, opposed [LD 830], say[s], “Requiring employers to accommodate the effects of ordinary pregnancies as if they were disabilities, when the law says they are not, adds an unnecessary and duplicative protection that will create confusion and, most certainly, litigation.”

Read the article, "Pair of bills would require allowances for new mothers in the workplace."

Disability in the News in Maine and Across the US: November 2012 Roundup

The Waterville, Maine Online Sentinel reported that the Maine Human Rights Commission is establishing a mediation program to try to solve discrimination problems more efficiently.

According to the commission's fiscal 2012 annual report, 639 charges were filed, 82 percent of those involving complaints of discrimination in employment; 11.5 percent involving housing complaints; and almost 6 percent were complaints about public accommodation. The report says disability discrimination was alleged in a third of the complaints and whistleblower discrimination was alleged in a fifth of them.

Click here to read the complete story.

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Nine new veterans of the Iraq and Afghan wars enter Congress with the recent elections. The highest profile of these veterans is Tammy Duckworth, a disabled vet who will represent Illinois' 8th Congressional district as a Democrat. Duckworth was a major in the Army in Iraq. She is a double-amputee as the result of a grenade injury while piloting a Blackhawk helicopter. Read more about Duckworth and the issue of veterans in the Senate and House.

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Uncle Sam Wants You to Email Your Doctor

NPR reports that patients with online access to their doctors might be more engaged in making health care decisions. The article states, "A federal law passed in 2009 says that physicians have to start offering their patients online communication, or Medicare will start docking how much it pays them in the future." While initial studies showed that patients with online access made fewer doctor appointments, a larger, more recent study reveals that patients came in more often. However, "the government's intent in requiring doctors to offer online access ... isn't to drive the overall number of office visits up or down, but to improve the relationship between doctors and patients by improving communication." Read or listen to the complete story here.

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Teachers and administrators in Maine are fearful and confused by a new law opposing restraint of disabled students, according to a Portland Press Herald story with the headline, "Maine teachers say new restraint rule leads to assaults by students." The article goes into detail about the issues teachers are having with disruptive students and the fearfulness of the teachers in relation to the new rule. There is very little in the article about the reason the law was implemented -- to protect disabled students from excessive force, restraint, or other abuse.

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The American Psychiatric Association is voting on the revisions to the DSM-5 (Diagnostic and Statistical Manual - Fifth Edition) this weekend. Some possible changes that have people concerned include eliminating Asperger's syndrome and instead categorizing people who previously fit that diagnosis as "mildly autistic." Other changes include adding a form of depression associated with grieving a death or other loss, and -- in an attempt to reduce the overmedicating of children who are diagnosed with bipolar disorder -- adding "disruptive mood dysregulation disorder" among children. Click here to read or listen to the story on All Things Considered.

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The United States Senate is set to vote on Tuesday whether to ratify the U.N.'s Convention on the Rights of Persons with Disabilities. According to the Huffington Post, strong opposition to ratification comes from the extreme right wing, including Republican Senators Rick Santorum and Mike Lee, the latter of whom said he would "do everything I can to block" ratification. On December 2, the Washington Post Editorial Board came out with strong support of ratification, appealing to Republicans to remember that the Americans with Disabilities Act was enacted under George H. W. Bush and that the George W. Bush administration signed off on the UN Convention in 2006. The Post's editorial closes thus:

Today’s Republican senators could do a lot worse than to heed Mr. Dole’s advice. His political career is eloquent testament that heartland conservatism is consistent with enlightened global engagement and a compassionate commitment to civil rights for all — including citizens with disabilities.

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Maine Rife with Baby Boomers!
A Bangor Daily News article opens: "In terms of demographics, Maine is the oldest state in the nation, populated by what the state Office of Aging and Disability Services calls one of the largest concentrations of baby boomers." In response, efforts to grow the 18-44 year old population and to spur economic development are in the works. Read details of these efforts here.