A GUIDE TO THE USE OF
SERVICE ANIMALS IN NEW YORK STATE
MAY 2017
People with disabilities may rely on dogs and other service animals to assist them at their homes and workplaces, schools, retail stores, restaurants, theaters and when traveling. However, there has been confusion both for those who use service animals and those who must accommodate them. The New York City Bar Association and the New York State Bar Association have released this guide jointly to help clarify the legal rights and obligations involving the use of service animals in the state. The associations encourage the downloading, copying and distribution of the Guide throughout the state.
Please note that this guide provides general information only. The information in this guide should not be used or taken as legal advice for a specific situation. For legal advice about your rights or obligations in a particular situation, please speak to a lawyer.
This Guide has been designed to facilitate reading by people with sight and other reading disabilities. Its primary form of distribution is on the Internet, accessible by screen reader technology. It is in 14 point Arial type. Those who use screen magnification programs can enlarge the Guide to suit individual needs. Alternatively, the Guide may be copied into Word and magnified there for printing.
New York City and State Bar Associations
Joint Task Force on Service Animals in New York State
Mark H. Leeds, Chair
Dennis R. Boyd
John Ensminger
Prof. Margaret M. Flint
Christine L. Mott
Jo Anne Simon
New York City Bar Association Animal Law Committee
By: Lori Barrett, Chair
New York City Bar Association Disability Law Committee
By: John Egan, Secretary*
New York State Bar Association Animals and the Law Committee
By: Natalie A. Carraway, Chair
New York State Bar Association Disability Rights Committee
By: Tara L. Moffett, Chair
* * *
The Task Force thanks Anna McDermott at Debevoise & Plimpton
for her invaluable assistance.
*Hon. Katharine Parker, Chair of the NYCBA Disability Law Committee, recuses herself.
**This Guide was approved by the Executive Committee of the New York State Bar Association on March 31, 2017.
People with disabilities living, working, going to school, shopping, visiting, enjoying entertainment, traveling, or doing virtually anything else in New York State, may be accompanied by a service animal, as may a person training such an animal. Depending on the context and the location – i.e., in housing, transportation, employment or places of public accommodation, in or outside of New York City – the definition of “service animal” may be different; it may be limited to a dog or a miniature horse, or it may not be limited at all.[1] Unlike federal and state laws, the New York City Human Rights Law does not provide a definition of service animal; however, there is ample support to construe New York City’s Human Rights Law more broadly than federal and state laws in this area. These differing and shifting definitions and judicial interpretations of service animals under the various laws invariably has created confusion.[2] However, in most instances, the “bottom line” is determined by whether one is in New York City or elsewhere in the State.[3]
Likewise, the definition of the term “disability” varies among pertinent laws,[4] but, in most instances, such distinctions usually are not the central issue with respect to service animals. In some situations, the nature of the person’s disability and the role of the service animal will be readily apparent. Where they are not so apparent, the credible verbal assurance of the person with the animal that the person has a disability and a description of the service performed by the animal to alleviate some aspect of the disability are all that an entity covered by the relevant laws legally may ask in determining whether it must accept the person and the animal; a request for documentation would be illegal, except to limited extents in housing, air transportation, and employment.
This publication is the latest effort by the New York City Bar Association and New York State Bar Association to clarify the rights in question for those who train or use service animals, for those who must accommodate use and training of such animals, for law enforcement personnel, lawyers and judges who must interpret, enforce, and apply the pertinent laws, as well as for legislators and others seeking to be consistent with and/or to extend existing rights.
A person with a disability may use his/her service animal in “services, programs, and activities provided or made available by public entities” and in private sector places of public accommodation, “in all areas … where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.”[5]
Since 2011, United States Department of Justice (DOJ) Americans with Disabilities Act (ADA) regulations have limited “service animals” in such locations to dogs (without so limiting the applicability of laws not having such limitations, as discussed further below). DOJ accords a similar status to miniature horses.[6] DOJ no longer accepts emotional support and crime deterrence as tasks that could qualify an animal as a service animal[7] (again, without limiting other laws recognizing broader rights). The Justice Department also added a requirement that a service dog under Titles II and III be under the control of its handler. Although this generally requires a harness or tether of some type, it permits substitution of other effective means of control (for example, voice commands) when physical restraints “would interfere with the service animal’s safe, effective performance of work or tasks” or when the person using the dog is not capable of exerting physical control.[8]
Under DOJ’s ADA regulations, as well as New York State Human Rights Law (State HRL) and State Civil Rights Law (State CRL) provisions incorporating “control” aspects of those regulations, a covered entity may ask that the dog or miniature horse be removed if its handler cannot control it or if it is not housebroken.[9] But, while a “public accommodation is not responsible for the care or supervision of a service animal,”[10] it must make reasonable modifications of its policies and practices to facilitate a service animal user’s use of that animal, including provision of aids and services.[11] Covered entities are limited in the inquiries they might make and are forbidden from requesting documentation.[12] Indeed, both the Bush and Obama Justice Departments firmly rejected proposals that formal training be required for service animals.[13]
Notably, the ADA, State HRL, and State CRL constitute a floor, rather than a ceiling, for the City Human Rights Law (City HRL) and do not preempt broader rights under the City HRL. Accordingly, since the City HRL does not provide limitations or definitions concerning service animals, a covered entity in New York City would have to plead and prove that the presence of the particular service animal was an undue hardship.[14]
Among public accommodations covered by the ADA, beyond DOJ regulations, is transportation. Under United States Department of Transportation (DOT) ADA regulations, a transportation provider must accept the credible verbal assurance of a passenger or prospective passenger as to disability and service animal status.[15]
Service animals shall always be permitted to accompany their users in any private or public transportation vehicle or facility. One of the most common misunderstandings about service animals is that they are limited to being guide dogs for persons with visual impairments. Dogs are trained to assist people with a wide variety of disabilities, including individuals with hearing and mobility impairments. Other animals (e.g., monkeys) are sometimes used as service animals as well. In any of these situations, the entity must permit the service animal to accompany its user.[16]
These DOT requirements preempt local regulations that recognize lesser rights for people with disabilities using service animals.[17] At the same time, rights provided by the City HRL beyond those in the DOT’s ADA regulations are not preempted.[18]
The federal Air Carrier Access Act (ACAA) prohibits discrimination against people with disabilities in the provision of air transportation and requires acceptance of virtually all species of potential service animals.[19]Carriers are required to permit dogs and, in the case of domestic carriers, other service animals to travel with a passenger with a disability, with the animal occupying the same seat, unless such an arrangement would obstruct an aisle or emergency evacuation, in which case the carrier must offer the passenger alternative seating with the service animal. Although snakes, other reptiles, and some other species need not be accepted as service animals, even on domestic carriers, others (such as monkeys, pigs, and miniature horses) must be accepted unless certain specified conditions prevail.
Other requirements include: on flights of over 8 hours, the passenger must present documentation a day in advance of the first leg of the trip attesting that the animal either will not need to relieve itself or can do so without disrupting others; emotional support animals need only be accepted if accompanied by specific documentation from a treating health care provider presented at least a day in advance of the first leg of the trip;[20] passengers with both severe vision and hearing impairments also must advise the carrier a day in advance of the flight and must check in an hour before general boarding.[21] The carrier must provide accommodations even if advance notice and check-in requirements are not met, if such accommodations can be made without delaying the flight.[22] No additional charges may be made for services required under the ACAA, including carriage of a service animal.[23] The carrier may not restrict the movement of passengers with disabilities around terminals.[24] The carrier must accept any of several evidences of the service animal’s status, including “the credible verbal assurances of the qualified individual with a disability using the animal.”[25] There is no limit to the number of service animals that can be on any flight.[26] A person travelling with a service animal generally must be accommodated with either a bulkhead or non-bulkhead seat, as requested.[27] Adjacent seating must be provided for someone who will be assisting a person with a vision impairment during a flight.[28]
Taxis are prohibited from discrimination under the ADA. The Justice Department pursued a taxi driver for refusal to transport a blind would-be customer accompanied by a service dog, finding a violation of the ADA[29] and reaching a settlement including $1,000 in compensatory damages and an additional $1,000 civil penalty.[30] In New York City, the Taxi and Limousine Commission has rules and fines enforcing nondiscrimination against people with disabilities using service animals.[31]
Under the State CRL, employers of even one person throughout the State may not discriminate against an otherwise qualified employee or prospective employee with a disability accompanied by a guide, hearing, or service dog, “[u]nless it can be clearly shown that a person's disability would prevent such person from performing the particular job,” and must permit the person to have such dog in his or her immediate custody at all times.[32] There is no “reasonable accommodation” limitation on this requirement, so an employer may not challenge such rights under the State CRL by an assertion of undue hardship for the employer or others (for example, even a coworker’s allergy to dogs; the allergic coworker would have to be accommodated reasonably without limiting the rights of the person using a guide, hearing, or service dog).
Under the ADA, employers of 15 or more employees[33] are prohibited from discrimination and must make reasonable accommodation for employees and prospective employees with disabilities using service animals (for example, permitting “toileting” breaks with the service animal and time off to engage in training in the use of the service animal). EEOC guidance does not limit service animals to dogs.[34] EEOC states that, if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations."[35]
Similarly, the State HRL recognizes a right to “the use of an animal as a reasonable accommodation.” The statute does not limit the “animal” to a dog, nor does it contain any other limitation.[36] “Reasonable accommodation” is defined as “actions taken which permit an employee, prospective employee or member with a disability, or a pregnancy-related condition, to perform in a reasonable manner the activities involved in the job or occupation sought or held.” An accommodation may not be considered reasonable under the State HRL if it presents a “problem” (an undefined term) for an employer or for another employee.[37] The State HRL covers employers of four or more.[38]
The process of reaching a reasonable accommodation must be interactive, prompt, and in good faith.[39]
The City HRL covers employers of four or more, but the City HRL is interpreted more liberally than is the State HRL (for example, it includes protections for independent contractors).[40] The requirement to make reasonable accommodation also is broader than that under the ADA and State HRL.[41] Moreover, the City HRL prohibits discrimination separately from a requirement for reasonable accommodation; as with the State CRL, the City HRL non-discrimination requirement is not limited by a need for the person using the service animal to prove that the use of the animal is “reasonable.”[42]
For purposes of reasonable accommodation requests, neither the Fair Housing Act (FHA) nor Section 504 of the federal Rehabilitation Act of 1973 requires an assistance animal to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals. Although basic medical confirmation of disability and of the need for an assistance animal to ameliorate at least one aspect of such disability may be requested by a housing provider that is not part of a governmental program covered by Title II of the ADA, access to medical care providers and records is not permitted; if housing is provided as part of a governmental program (e.g., housing authority, shelter), the provider is limited by Justice Department regulations to requesting a credible verbal assurance from the person with the animal (under DOJ regulations, a dog) as to disability and the nature of the service the animal performs for the person with a disability.[43] No more could be sought under the City HRL. Emotional support animals and animals used by a person with a disability seeking physical protection are among those covered by the FHA and, therefore, by the City HRL.[44] The State CRL prohibits discrimination against a person with a disability, accompanied by a guide, hearing, or service dog, in the use or enjoyment of public or private housing, whether temporary or permanent.[45]
The State CRL provides the same right of access to the trainer of a guide, hearing, or service dog as it provides to a person with a disability using such a dog.[46] Discrimination against a person without a disability who is training a service animal of any species for a person with a disability might be prohibited under provisions covering relationship or association with a person in a protected class.[47] “Professional” guide, hearing, and service dog trainers are protected from discrimination while training such a dog, whether or not the person for whom the dog is being trained is present.[48]
With respect to employment discrimination (ADA Title I), an individual may file a complaint with the EEOC within prescribed time limits not exceeding 300 days after the alleged discrimination, or may file suit in federal or state court, within three years of the allegedly discriminatory act, seeking reinstatement of employment, back pay, attorney's fees and other relief, including compensatory and punitive damages in cases of intentional (not disparate impact) discrimination.[49] The Civil Rights Act of 1991 added compensatory and punitive damages (though not for governmental entities) on a capped sliding scale based on the size of the employer.[50] That Act also added provisions for attorneys’ fees,[51] although the Supreme Court has significantly limited the recovery of such fees in the ensuing years.[52]
With respect to private sector public accommodations (ADA Title III), an aggrieved individual can seek injunctive relief, court costs and attorneys fees – but no monetary damages.[53] Discrimination in the provision of public services by governmental entities (ADA Title II) is subject to the remedies available for violation of § 504 of the Rehabilitation Act of 1973,[54] discussed above. Also noted above, the Eleventh Amendment does not bar monetary suits under Title II of the ADA against state governments with respect to the “constitutional right of access to the courts,” protection against actual Constitutional violations and, potentially, some other violations of Title II.[55]
Pursuit of remedies through governmental enforcement agencies such as the EEOC, DOJ, or HUD, rather than through private litigation in court, may be attractive for those who prefer government management of their case, although private attorneys often can include causes of action from a variety of applicable statutes (including federal, State, and local, rather than only the one within the purview of an agency) and secure a broader array of remedies.
The City HRL and, in part, the State HRL, provide some remedies superior to those of the ADA. Administrative complaints may be filed within one year after the alleged discriminatory act with the City Commission on Human Rights (CCHR)[56] or with the State Division of Human Rights (SDHR).[57]
Filing a complaint with the CCHR or, alternatively, a private suit in court under the City HRL, provides a complainant, under a plaintiff-friendly evidentiary standard consistent with the unique remedial purpose of the City HRL, with a full range of potential remedies, including compensatory and punitive damages, injunctive relief, costs, attorneys and expert fees.[58] If the complaint is filed in court, rather than with the CCHR, there is a three year statute of limitations.[59]
The State HRL has a similar court statute of limitations, although punitive damages and attorneys’ fees are not available except in cases of housing discrimination, or sex-related employment or credit discrimination, and the evidentiary standard is not as favorable to plaintiffs as it is under the City HRL.[60]
Unlike the ADA, the City HRL and the State HRL have no limitation on the amount of damages that may be sought.
Government agencies are not exempt from suit under the City HRL, although designated representatives of the CCHR and the City’s Corporation Counsel must be served with a copy of the complaint (against a City agency or otherwise) within ten days after commencement of a suit and the possible application of notice of claim provisions for suits against municipalities must be considered.[61]
The City itself may bring a “pattern or practice” suit, seeking a wide range of relief, including civil penalties.[62]
Government action inconsistent with antidiscrimination laws may be overturned (as part of exhaustion of remedies or otherwise) as arbitrary and capricious under Article 78 of the New York State Civil Practice Law and Rules.[63] “[P]articipation of an individual director in a corporation’s tort is sufficient to give rise to individual liability” in the context of claims of coop discrimination under housing and retaliation provisions of the State HRL and City HRL.[64]
Remedies under the State CRL are limited,[65] and so might best be sought in coordination with causes of action under other applicable laws.
Other localities have varying remedies – for violations of prohibitions that often are not identical to federal and State laws[66] – that may supplement and/or be superior to those in the ADA, FHAA, State HRL and/or State CRL.
For example, Buffalo’s Fair Housing Officer is empowered, among other things, to request Buffalo’s Corporation Counsel to sue for a fine not exceeding $1,500 for each incident of discrimination – and “[r]evocation or suspension of any license or permit issued by the City of Buffalo necessary to the operations of the housing accommodation(s) in question ….”[67] Also in the context of housing discrimination, the complainant may bring a civil suit “for injunctive relief, damages, and other appropriate relief in law or equity” and the court may award attorneys fees to a prevailing plaintiff as part of the costs.[68]
A civil suit also is possible for violation of Albany’s Omnibus Human Rights Law, with damages and other relief in law and equity.[69]
The Westchester Human Rights Commission is empowered to award compensatory damages (“including, but not limited to, actual damages, back pay, front pay, mental anguish and emotional distress”), as well as punitive damages (not to exceed $10,000), and to assess a civil penalty of up to $50,000 ($100,000 for a willful violation).[70]
The Nassau County Commission on Human Rights may assess penalties ranging from $5,000 to $20,000 in employment and public accommodation cases.[71] In a housing case, the Commission may award compensatory damages and attorneys’ fees;[72] the County Attorney may bring a civil suit for injunctive relief, compensatory and punitive damages, attorneys fees and civil penalties;[73] and an aggrieved party may bring a civil suit within three years, seeking compensatory and punitive damages, injunctive relief, and other appropriate remedies.[74]
Better and more widespread understanding of laws regarding use of service animals by people with disabilities in New York State should promote respect for both the laws and the people whose rights are recognized by those laws. It also should facilitate integration of such people into an improved society.
