The Peacock That Roared…

In addition to speaking last year at our annual event, Carolyn Ladd wrote an article for us and the KCBA. It can be found at: https://www.kcba.org/For-Lawyers/Bar-Bulletin/PostId/1053/what-qualifies-as-a-service-animal

It’s also reproduced with pemission below:

THE PEACOCK THAT ROARED: 

WHAT QUALIFIES AS A SERVICE ANIMAL?

            In January 2018, a passenger tried to board a United Airlines flight from Newark, New Jersey to Los Angeles, California with an emotional support peacock.[1] Despite the passenger having purchased the peacock its own seat, United denied it boarding due to its “weight and size.”[2] Pictures[3] of the majestic blue bird named Dexter on a luggage carrier went viral and raised questions of what animals should be allowed as service animals and whether emotional support animals should be afforded the same legal protections. 

As a result of concerns raised by individuals with disabilities and businesses, the Washington State legislature limited what kinds of animals can be a service animal, and the federal Department of Transportation (DOT) issued guidance on when commercial airlines must allow service or emotional support animals into the cabins of airplanes.

WASHINGTON LAW AGAINST DISCRIMINATION:

DOGS AND MINIATURE HORSES

The Washington State legislature, recognizing that “there are an increasing number of occurrences where people intentionally or mistakenly represent their pet, therapy animal, or emotional support animal to be a service animal,”[4] amended the Washington Law Against Discrimination (WLAD) to limit service animals to dogs or miniature horses[5] for places of public accommodation[6] and employment.[7] A service animal is now defined as “any dog or miniature horse . . . individually trained to do work or perform tasks for the benefit of an individual with a disability . . . .”  The work performed by the dog or miniature horse must directly relate to the individual’s disability such as:

  • Assisting a blind person with navigation
  • Alerting a deaf person to sounds
  • Providing nonviolent protection or rescue work
  • Pulling a wheelchair
  • Assisting an individual during a seizure
  • Alerting individuals to the presence of allergens
  • Retrieving items
  • Providing physical support and assistance with balance and stability for people with mobility impairments
  • Interrupting impulsive or destructive behaviors for people with psychiatric or neurologic disabilities[8]

Providing emotional support or comfort does not constitute work or tasks – meaning that the use of emotional support animals is not protected by the WLAD for purposes of employment or in places of public accommodation.

            Perhaps the most interesting part of the new law is that it is a civil infraction punishable by a fine of up to $500 to misrepresent an animal as a service animal.[9]  The law applies whether the misrepresentation is express or implied if it is done to secure the rights or privileges afforded to service animals and if the person knew or should have known that the animal does not meet the definition of service animal.[10]  An enforcement officer or a place of public accommodation cannot ask about a person’s disability, but can ask the following:

  • Is the animal required because of a disability?
  • What work or tasks has the animal been trained to perform?[11]

These questions should not be asked when it is obvious that the animal is trained to perform tasks for a person with a disability, such as a guide dog for a blind person. Documentation that the animal has been certified or trained cannot be required.  

WHY MINIATURE HORSES?

            Why might a person with a disability use a miniature horse instead of a guide dog? Possible reasons include:

  • The average lifespan of a miniature horse is 30 to 40 years.
  • Unlike a dog, a miniature horse is not easily distracted.
  • For people with mobility impairments, a miniature horse is strong enough to provide support.
  • Those allergic to or fearful of dogs may prefer a miniature horse.[12]

CITY OF SEATTLE

            While the state has limited service animals to dogs and miniature horses, the city of Seattle has not. For purposes of employment[13] and places of public accommodation,[14] the city defines a service animal as “any animal that provides medically necessary support for the benefit of an individual with a disability.”

KING COUNTY

For places of public accommodation[15] and employment[16] in unincorporated parts of King County, there is a different definition of service animal:

a dog guide, signal or hearing dog, seizure response dog, therapeutic companion animal or other animal that does work, performs tasks or provides medically necessary support for the benefit of an individual with a disability.

This definition is broader than the WLAD in that it includes animals beyond dogs and miniature horses and also specifically includes a therapeutic companion animal.  

The King County Office of Civil Rights & Open Government has issued guidance for people coming onto county premises with service animals. The guidance lists specific types of animals that do not qualify as service animals:  insects, spiders, full size farm animals, wild animals, and potentially dangerous exotic animals such as monkeys.[17] And it lists animals that are acceptable service animals:  cats, birds, reptiles, small rodents, domestic ferrets, miniature horses, and small pot-bellied pigs. The guidance points out that a person with a disability might need more than one service animal.

            Here is a table that attempts to capture these different definitions of service animal for purposes of employment and places of public accommodation in Washington State, King County, and the city of Seattle:

 Type of AnimalWhat does the animal do?
Washington Law Against Discrimination RCW 49.60.040(24)Only dog or miniature horseIndividually trained to perform tasks or work Cannot just provide emotional support  
King County Code KCC 12.22.020(M) KCC 12.18.020(N)Any animal  Does work, performs tasks, or provides medically necessary support Can be therapeutic companion animal
Seattle Municipal Code SMC 14.04.030 SMC 14.06.020Any animalProvides medically necessary support
Table 1. Different jurisdictional statutes for service animals

DOT GUIDANCE FOR AIRLINES

Back to the inspiration for this article – Dexter the Peacock trying to board a Newark to Los Angeles[18] flight on United Airlines. The federal Department of Transportation (DOT) received complaints from individuals with disabilities, airlines, flight attendants, and others about poorly behaved animals in airplane cabins and about animals not qualifying as service animals. Those complaints resulted in the DOT issuing new guidelines for service and emotional support animals in aircraft cabins.[19]  Although airlines cannot categorically refuse to transport a particular type of animal,[20] an airline can, on a case-by-case basis, deny an animal if the airline determines that specific factors preclude the animal from being transported in the cabin as a service animal such as size or weight, threat to the health or safety of others, or disruption. The DOT’s enforcement priority is that the most common types service animals, “dogs, cats, and miniature horses are accepted for transport.”

An airline can request a passenger present documentation related to a service animal’s training, or behavior so long as the documentation would assist the airline in determining whether an animal poses a direct threat to the health or safety of others. If the passenger’s disability is not obvious, an airline “may ask limited questions to determine the passenger’s need for the animal even if the animal has other indicia of a service animal such as a harness, vest, or tag.” An airline can ask for example, “How does your animal assist you with your disability?” and can require a credible response that establishes that the passenger has a disability and that the animal is a service animal.  An airline can require more documentation for the use of emotional support animals:  a statement from a licensed mental health care provider treating the passenger that states that the passenger has a diagnosed mental health condition and that the passenger needs the animal as an accommodation.[21]



Carolyn Ladd is an employment lawyer who is a member of the Washington Attorneys with Disabilities Association (WADA). She can be reached at carolynladd@comcast.net.


[1] The peacock has an Instagram page @dexterthepeacock. According to an entry from that page, Dexter passed away unexpectedly on July 22, 2018.

[2] Lindsay Bever and Eli Rosenberg, United changed its policy for emotional-support animals. That peacock still can’t board., Wash. Post, Feb. 1, 2018, available at   https://www.washingtonpost.com/news/animalia/wp/2018/01/30/a-woman-tried-to-board-a-plane-with-her-emotional-support-peacock-united-wouldnt-let-it-fly/

[3] See e.g., https://www.instagram.com/p/BeejEFChTct/?utm_source=ig_web_button_native_share.

[4] 2018 Substitute House Bill 2822, available at:  http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session%20Laws/House/2822-S.SL.pdf#page=1.

[5] RCW 49.60.040(24). The law went into effect on January 1, 2019.

[6] Places of public accommodation include, inter alia, restaurants, stores, malls, theaters, and hotels.  RCW 49.60.040(2).

[7] “This subsection does not apply to RCW 49.60.222 through 49.60.227 with respect to housing accommodations or real estate transactions.” Id.

[8] Id.

[9] RCW 7.80.120.

[10] RCW 49.60.214(1).

[11]RCW 49.60.214(2)(b).

[12] http://guide-horse.org/

[13] SMC 14.04.030.

[14] SMC 14.06.020.

[15] KCC 12.22.020(M).

[16] KCC 12.18.020(N).

[17] https://www.kingcounty.gov/~/media/exec/civilrights/documents/SApublic.ashx

[18] Note that this is a flight that lasts 5 hours and 50 minutes. https://www.prokerala.com/travel/flight-time/from-newark/to-los-angeles/.

[19] U.S. Department of Transportation Final Statement of Enforcement Priorities Regarding Service Animals, available at https://www.transportation.gov/individuals/aviation-consumer-protection/final-statement-enforcement-priorities-service-animals

[20] Except that an airline can refuse to transport snakes, other reptiles, ferrets, rodents, and spiders. But an airline cannot ban a particular breed of dog. Id.

[21] 14 C.F.R. § 382.117.

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