Prepared by Kathleen L. Wilde, Litigation Director
October 1998
Updated March 2002
Persons requiring the use of service or assistance animals are protected from
discrimination:
(A) in housing (under the Federal and State Fair Housing Acts)(FHA);
(B) in places of public accommodation (under Title III of the Americans with Disabilities Act)(ADA) and various state laws;
(C) in public services, programs and activities (under Title II of the ADA and Section 504 of the Vocational Rehabilitation Act);
(D) in public transportation (under Title II of the ADA);
(E) in private transportation (under Title III of the ADA and state law);
(F) on airplanes (under the Air Carrier Access Act of 1986); and
(G) in the workplace (under Title I of the ADA).
In order to qualify for these protections, you must be "handicapped" (FHA) or "disabled" (ADA), meaning that you must have a physical or mental impairment which substantially limits one or more major life activities. Impaired vision is considered a disability.
The Federal Fair Housing Act makes it illegal to discriminate in the sale or rental of a dwelling to any buyer or renter because of a handicap. 42 U.S. C. 3604(f). The Act requires a landlord to make "reasonable accommodations" in rules, policies, practices or services, when necessary to allow the person an equal opportunity to use and enjoy the dwelling,
Federal regulations make it clear that a housing provider must allow assistance animals to reside in the unit, even if the landlord has a "no pet" policy. Examples of such animals explicitly include a seeing eye dog. 24 C.F.R. 100.204(b). Service or assistance animals are also covered. The animal need not be certified; it is simply necessary to show that the animal performs a service or function for the owner that is directly related to his or her disability. The landlord may not impose an additional security deposit for the assistance animal. 24 C.F.R. 100.65(b)(1).
There are equivalent protections under Oregon State law as well, both under the fair housing act and specific statutes addressing "guide dogs for blind or deaf persons in public places," ORS 346.680 and "assistance animals for physically impaired persons," ORS 346.680.
These rights may be enforced by filing a complaint with the United States Department of Housing and Urban Development, with the Oregon Bureau of Labor and Industries, or by filing a lawsuit in state or federal court. Compensatory and punitive damages are available as remedies.
Public housing authorities must also accommodate assistance animals, under Title II of the ADA. Under Title II, a publicly funded program must make its programs and facilities accessible to persons with disabilities. A recent case in federal court, filed under the state and federal Fair Housing Acts, as well as Title II of the ADA, upheld the right of a deaf child to have a dog which alerted him to visitors, cars, the telephone and fire in public housing. Green v. Housing Authority of Clackamas Country, 994 F.Supp. 1253 (D.Or. 1998).
Title III of the ADA requires "reasonable accommodation" in places of "public accommodation," which is defined to include stores, restaurants, hotels, movie theaters, auditoriums, museums, parks, schools, and recreational facilities. 42 U.S.C. 12182. The "accommodation" must be granted unless it would "fundamentally alter" the services provided. Places of public accommodation must modify their policies to permit use of service animals by individuals with disabilities, unless the public accommodation can demonstrate that it would result in a fundamental alteration or jeopardize the safe operation of the business. This means that assistance animals may accompany you to restaurants, hotels, theaters, and most other places of public accommodation. However, it has been held by one court that a hospital's exclusion of a service dog from its emergency room did not violate Title III. A public accommodation may not require a deposit as a condition of permitting the animal to accompany you. Of course, you are responsible for the care and supervision of your animal at a times.
Oregon also prohibits places of public accommodation from discriminating on the basis of disability. ORS 659.425(4). However, there is no specific language requiring "reasonable accommodation."
Title III may be enforced by filing a lawsuit in state or federal court. The court may order the public accommodation to allow you access to their services (or prevent them from excluding you). Damages are not available under federal law, but are available under the state's public accommodation law.
Under Title II of the ADA, public programs (operated by state or local governments) may not exclude people with disabilities from receiving the benefits of, or participating in any programs or benefits offered. Again, reasonable accommodations must be made, including permitting a person to be accompanied by an assistance animal. Under federal law, all programs, services and activities of state and local government must be accessible by January 26, 1992. There are similar protections governing programs that receive federal money under Section 504 of the Vocational Rehabilitation Act.
Section 504 may be enforced by filing a complaint with the federal funding agency. Both Title II and Section 504 may also be enforced by filing a lawsuit in federal court. Compensatory damages may be awarded for "intentional discrimination."
Title II prevents discrimination against disabled persons using public transportation. Public transportation means transportation by bus or rail, or by any other conveyance, including dispatched vehicles such as vans and cabs (but excluding air travel and public school transportation, which are separately regulated). The statutory provisions are expressly limited to "public entities. " 42 U.S.C. 1214 1, et seq. The transportation must be readily accessible to and useable by individuals with disabilities. Discrimination is defined to include denial of the opportunity to use the transit system if you are capable of doing so. 49 C.F.R. Section 37.5(b).
To enforce your transportation rights, you may file an administrative complaint within 180 days with the Federal Transit Administration or the Department of Justice. You may also file a private lawsuit seeking injunctive relief and/or damages.
Title III prohibits discrimination on the basis of disability by private entities engaged in the business of transporting people and whose operations are affected by commerce. 42 U.S.C. 12184. The regulations require that these carriers allow disabled persons to the full enjoyment of their services, and includes the obligation to make reasonable accommodations to rules and policies. 49 C.F.R. Section 37.5(f). Therefore, you must be permitted to bring an assistance animal with you when using such forms of transportation. Injunctive relief is available in federal court to redress violations of this law.
Under state law, a blind person may have a guide dog with him or her on "any mode of transportation," whether it be public or private, so long as the owner controls the animal's behavior. You may not be charged an additional fee to ride with your animal. ORS 346.620. There are similar rights for other assistance animals. ORS 346.685. You have a right to file a lawsuit seeking damages if you are denied that right.
The Air Carrier Access Act of 1986 prohibits discrimination against handicapped individuals. Its implementing regulations make it clear that "carriers shall permit dogs and other service animals used by handicapped persons to accompany persons on a flight." 14 C.F.R. Section 382.55.
Title I of the ADA prohibits discrimination against disabled people in employment, and requires reasonable accommodation at the employee's request. 42 U.S. C. 12111. The Interpretative Guidance for the statute states that "it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work." Appendix to 29 C.F.R. Part 1630. However, an employer can turn down a request for accommodation where it would cause an undue hardship or present "a direct threat," that is, a significant risk to the health or safety of others. There is at least one case involving a restaurant employee (at McDonald's) where the question arose as to whether the animal would pose a health hazard. The EEOC has taken the position that the standard is very high to prove such a direct threat.
In order to bring a charge of discrimination against an employer, the employee must first make a request for the reasonable accommodation, providing documentation of the need for the animal, if requested. If the request is denied, a complaint must be filed with the Oregon Bureau of Labor and Industries or the Equal Employment Opportunity Commission prior to filing a lawsuit.
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