16 September 2014
The recent Uber lawsuit
On September 9, 2014, Uber Technologies was sued in Federal Court in San Francisco for violating the Americans with Disabilities Act (ADA) and California’s Unruh Act. The suit arose from the claim that UberX drivers refused to allow blind riders to bring their guide dogs. For a copy of the complaint, click here to see Natl Federation of the Blind v. Uber Technologies.
This is just the latest in an long history of complaints or enforcement actions involving the legal requirements concerning “service animals” under the ADA and corresponding state laws such as California’s Unruh Act.
Why public facilities are subject to these service animal rules
Like Uber taxis, all hotels, restaurants, spas, retail facilities, movie theatres, and sports and entertainment venues are places of public accommodation. As such, they are expressly subject to the ADA and corresponding state laws.
Because so many people ask us about the “service animal” issues, we thought it might be helpful to provide our industry friends with some guidelines on the major questions in this area through a series of frequently asked questions or FAQs about this subject.
FAQs about the ADA’s legal requirements for service animals
Jim Butler & Marty Orlick
ADA Defense & Compliance Lawyers
Here are some of the most Frequently Asked Questions on service animal issues under the Americans with Disabilities Act or ADA.
What qualifies as a “service animal?”
Businesses . . . may ask only two questions of individuals regarding their service animals . . .
Under the ADA, a dog or miniature horse that “is individually trained to do work or perform tasks for the benefit of an individual with a disability” qualifies as a service animal. The “work” or “tasks” performed by a service animal must be directly related to the individual’s disability. For example, the service animal might pull a wheelchair, guide a visually impaired person, or assist an individual with psychiatric disabilities.
Comfort animals and pets are NOT service animals. Comfort animals merely provide emotional support and are not individually trained to assist with a disability.
What can you ask a customer who enters your business with an animal?
Businesses and their representatives who come in contact with the public may ask only two questions of individuals regarding their service animals:
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
What businesses may NOT ask:
Is my business required to provide service animal care such as food or a place for the animal to relieve itself?
Businesses may not ask anything else. For example, they may NOT ask
- For proof of training or license for the service animal;
- For the guest to explain or verify his/her disability;
- For a demonstration of the service animal’s training or abilities.
Do you have to alter your establishment to accommodate service animals?
A public accommodation is not required to accommodate a service animal when doing so would result in a fundamental alteration to the nature of the business.
Examples: The following do NOT qualify as fundamental alterations:
- Accommodation of a service animal at a restaurant or location that serves food (even if health codes prohibit animals).
- Accommodation at a busy sports facility.
Can we deny service animals if others are allergic?Example: The following would qualify as a “fundamental alteration” and does not have to be accommodated:
- A service dog that is actively barking at a cinema or theater.
Common questions and answers about service animals:
- Allergies: Can we deny service animals if others are allergic? NO.
- Fear: Can we deny service animals if others are afraid of dogs in general? NO.
- Care: Is my business required to provide service animal care such as food or a place for the animal to relieve itself? NO.
For more information on our preventative enterprise-wide ADA compliance program . . .
Too often we see property owners and managers get “stuck” on a single element of ADA compliance, whether that is pool lifts or web access. Don’t focus on any single element. The best approach to avoiding an ADA lawsuit is to conduct an ADA compliance and prevention survey of your business. The survey should include an assessment of the following:
- Physical facilities — the brick and mortar
- Written ADA policies, practices and procedures manual
- Reservation system compliance with best practices
- Website accessibility for blind and low-vision guests
- Staff training and competency on using auxiliary aids and services for persons with disabilities (audio and visual)
- Call center and operator training and compliance to accept the many types of Telecommunication Relay Services (TRS) used by deaf, hard of hearing and speech impaired guests and potential guests. (The U.S. Department of Justice has been particularly aggressive when it comes to enforcing hotel policies, practices and procedures regarding the effective use of TRS.)
Subpar performance on any one of these elements could mean trouble in an ADA suit.
The survey should be done under representation of an attorney, which will give the results of the survey protection under attorney-client privilege.
For more information on our enterprise-wide ADA compliance program, please contact us:
Chairman, Global Hospitality Group®
Senior Member, Global Hospitality Group®
Chairman, ADA Defense Team
Other ADA defense and compliance resources
You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says “HOTEL LAW TOPICS”, and then clicking on “ADA Defense & Compliance” in the drop down menu . . . or by clicking here.
Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?
Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $87 billion of hotel transactions, involving more than 3,900 properties all over the world. For more information, please contact Jim Butler at email@example.com or +1 (310) 201-3526. Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why. Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.