Jack Russell Terrier SnarlingDelta’s recent announcement that it was banning “pit bull type” dogs from its flights* has focused public attention on a long-standing problem in disability law; the inherent conflict between the need for easy to apply policies concerning service and emotional support animals and the prohibition in the law against basing decisions on stereotypes. You can ban any particular pit bull if there is good reason to believe it is dangerous, but you can’t ban all pit bulls just because it is a dangerous breed.

For businesses like airlines that have thousands of employees who must make decisions in only a minute with no real information this is a serious problem. The first time an airline sees a service dog or emotional support animal may be less than a minute before the animal and its owner want to board the aircraft, and that time scarcely provides an opportunity for an individualized assessment of whether the animal is a risk to others. If the animal can behave for just a few minutes it will look fine, but it is then placed in a closely confined, noisy space where it may be sitting next to a complete stranger for a period of an hour or more. These are circumstances that test the patience of human beings; we often read stories of passengers being arrested for physical or verbal abuse during long flights. It is hardly surprising that they might test the ability of an animal to keep its cool.

The first part of a solution to this problem begins with the recognition that only service dogs should be permitted in airports or aircraft. The ADA does not require any business to permit emotional support animals for the good reason that such animals are not required to have any training at all and may not be suitable for public spaces. The Department of Transportation should adopt a similar sensible approach to emotional support animals, only permitting service dogs in airports and aircraft. There is no real scientific evidence that those with disabling mental impairments have any genuine need for emotional support animals in public places, and in the absence of such evidence DOT should not require that they be accommodated.

The second part of the solution is an on the ground assessment of service dog behavior before it is permitted past security in the airport. This assessment would take only a few minutes and require only that the dog be able to sit and lie down on command, and that it be able to stand or sit calmly when approached by a stranger and by another dog. These are the minimum behaviors required by all legitimate service dog trainers and a dog who cannot do these things is likely to be a danger to others. It is a test we recommend to all our Fair Housing Act clients when confronted by a reasonable accommodation request for either a service dog or an emotional support animal if the request includes taking the dog into public areas.

The disability rights laws are unique among discrimination laws because equal access for the disabled often requires that they be treated differently than those without disabilities, once such difference being the privilege of taking a service dog into a business or airplane. The minor inconvenience of demonstrating the dog’s ability to behave in difficult circumstances is simply one of the trade-offs that comes with the necessity to resolve a conflict between what is required for accessibility and the rights of others to be free from the risk of harm. Airlines are particularly well suited to make this kind of assessment because their operations already involve processing large numbers of passengers. Having an agent trained to assess service dogs will not create an unusual burden, particularly if the assessment is done at check-in or just before security. Neither blanket breed prohibitions nor wide-open allowance of all claimed service dogs will properly balance the rights of all parties. An individualized assessment will.

* See, “Delta is banning pit bull service dogs” in the Washington Post.