by Ed and Toni Eames
(Author’s Note: This article was published over 20 years ago, but employment discrimination persists today.)
As president of the International Association of Assistance Dog Partners, a consumer advocacy organization with more than 2,000 people with disabilities working with guide, hearing and service dogs, Ed was often consulted on a wide range of access denial issues. Most access problems were readily solved when those who initially declare, “No dogs in my restaurant, taxi or hospital” become aware of existing laws. However, the most difficult cases to resolve within a reasonable time frame were those involving employment of disabled individuals partnered with guide, hearing and service dogs.
As we know, guide dogs are trained to help their blind and low vision partners safely negotiate the unseen environment. Hearing dogs alert their deaf and hard-of-hearing partners to unheard sounds such as the telephone ring, door knock, smoke alarm or the person’s name being called. Service dogs work with people with disabilities other than blindness or deafness and provide a diversity of disability mitigating tasks. These tasks include, but are not limited to, bracing to provide help getting in and out of chairs, support in walking, retrieving dropped or requested objects, helping to pull a wheelchair, alerting to a medical crisis or reminding the partner to take medications.
The Employment Issue
Employment related issues are addressed by a number of laws, including state statutes, the Rehabilitation Act and Title I of the Americans with Disabilities Act. Under Title I compared with Title III of the ADA, instead of a mandate of access, the requirement is less stringent providing only for reasonable accommodation to be made to permit an employee to be accompanied by an assistance dog/service animal. This distinction continues to make denial to the workplace because of the presence of an assistance dog an ongoing problem. As the following four cases will show, there is very little consistency in the application of the laws.
The Chris Branson Case (Branson v. Brown)
Dr. Chris Branson, a graduate of Northwestern University medical school, began working at the Lakeside Veterans Administration Health Care Center in Chicago in 1981. Four years later, she was paralyzed.
Following rehabilitation for her spinal cord injury, Dr. Branson returned to work as a staff physician at Lakeside Hospital in February 1986. Like many other paraplegics, she preferred using a manual wheelchair to maintain her upper body strength and independent mobility.
Facing increased fatigue in her upper extremities, and recognizing the diversity of benefits to be derived from working with a canine assistant, Dr. Branson trained with a service dog in 1995. She was impressed with her new partner’s skill in picking up dropped or requested items, opening and shutting doors, and pulling her manual wheelchair. Prior to training with Nolan, Dr. Branson sought permission to bring him into her workplace, because her training program, Paws With A Cause, believes that for employed applicants, training in the job setting is essential.
Unfortunately, the hospital administration failed to recognize Nolan’s ability to improve Dr. Branson’s quality of life. Despite numerous memos from Dr. Branson and her Rehabilitation Institute of Chicago doctors, the hospital director remained adamant he would not allow a dog in his hospital. Repeated attempts to obtain an explanation for his exclusionary policy went unanswered. The ploy used by the administration was to continue to ask Dr. Branson and her rehab doctors for more information about her medical condition, and to ask them to specify how a service dog could aid her on the job. Several months after completion of training with Nolan, Dr. Branson received official notification he was barred from accompanying her to work.
Following mandated procedures, Dr. Branson filed a discrimination complaint with the VA Equal Employment Opportunities investigation team. This internal review committee rubber-stamped the administration’s denial of access by finding Dr. Branson had not proven she was denied reasonable accommodation and the decision to train with a service dog was a lifestyle choice and not work-related.
Responding to this finding, Dr. Branson hired an attorney and filed a complaint against the VA hospital in federal court. Patrick Kronenwetter agreed to represent her.
At the time the case was heard four years later, the VA lawyer asked for dismissal. In opposition, Dr. Branson’s lawyers asked the judge to have the case go to trial and enjoin the hospital from barring Nolan.
The hospital’s position was that Dr. Branson was already receiving a number of accommodations enabling her to continue working. They stated the law does not require a federal agency to provide every accommodation a disabled employee requests. In effect, they were saying they had the exclusive right to determine the nature of reasonable accommodation.
The case was heard by Judge Nan Nolan of the Northern District of Illinois, Eastern Division. On May 17, Judge Nolan decided that the VA had violated Section 504 of the Rehabilitation Act in denying Dr. Branson the right to be accompanied by her service dog at work. She stated the VA’s view of reasonable accommodation was too narrow. Their unwillingness to engage in a meaningful dialogue with Dr. Branson about the potential negative impact on the hospital of Nolan’s presence was improper.
Judge Nolan noted the basis of her decision was:
- Dr. Branson is a qualified individual with a handicap.
- Lakeside VA must make reasonable accommodations for the handicap.
- Accommodation need not be made if it would impose an undue hardship on the operation of Lakeside’s program. Lakeside bears the burden of proving an undue hardship. An undue hardship could be financial or in terms of operations but neither claim has been made by the Lakeside VA. The only question is whether the requested accommodation was reasonable. The undisputed facts indicate that Dr. Branson’s request for accommodation was reasonable.
Judge Nolan also noted, “Lakeside VA’s minimal effort in cooperation falls short of its responsibilities under the (Rehabilitation) Act. Lakeside VA never explained its objection, if any, to the service dog, never suggested any alternative accommodation, never claimed undue hardship, yet it continues to deny Dr. Branson the ability to use her service dog in the workplace.”
The Lakeside VA administration requested a reconsideration of this decision, and a hearing on the appeal was set for July 1999. Since Dr. Branson’s case had not been dismissed, it was scheduled to be heard by a federal court jury in conjunction with the VA appeal.
In the two-day trial beginning July 13, Mike Sapp, CEO of Paws with a Cause, and the local trainer who worked with Dr. Branson testified about Nolan’s training and ability to perform tasks in the workplace. In addition, Dr. Branson’s Rehabilitation Institute physicians testified about her deteriorating physical condition and the benefits of having Nolan on the job with her. The major witnesses for the VA were the chief of staff and the former director.
While the jury was deliberating, Judge Nolan heard the VA appeal against her May 17 judgment. During the chief of staff's testimony about the potential disruptive effect of Nolan’s presence in the hospital, the judge interrupted, pointed to Nolan and asked if he was referring to that dog lying quietly next to Dr. Branson’s wheelchair for the last three hours. Another witness for the VA was the head of engineering. He brought in detailed diagrams of the hospital’s elevators and patients’ rooms to demonstrate a dog of Nolan’s size would have a difficult time maneuvering in the limited space. Judge Nolan asked if gurneys fit into the hospital elevators and patients’ rooms, and noted that if they did, a retriever should have no problems. Unswayed by the VA claims, Judge Nolan mandated the two sides get together and establish a procedure to permit Dr. Branson to bring Nolan to work with her.
When the jury returned after deliberating for two hours, they awarded Dr. Branson $400,000 and payment for all legal costs. This, the jury noted, was compensation in part for her pain and suffering resulting from the VA-imposed ban.
Despite Judge Nolan’s mandate requiring access, it was not until December 2 that she signed the injunction barring the VA from denying access to Nolan. On December 13 Nolan went to work with Dr. Branson without incident. Thus, four years after being formally denied the right to bring her service dog to work with her, Chris Branson and Nolan had finally become a working team in the VA Lakeside Hospital.
Based on the clear judgment in this case, why do we continue seeing similar access denials in the workplace? The problem is, this case was brought under the Rehabilitation Act rather than the ADA and never went through a federal appeal process. However, it certainly stands as a beacon in an otherwise barren landscape.
The Laura Otis Case
Laura Otis was an elementary school teacher in Orange County, California who began feeling the growing debilitating effects of a neuromuscular disease resulting in the need to use a cane to aid in walking. She also began having difficulty picking up objects dropped on the floor. To help retrieve dropped or needed items, such as her cane, a chalk holder or board eraser, Ms. Otis hired a trainer to task-train her dog Zoe and prepare her for public access.
On June 9, 2003, the district gave permission for Ms. Otis, a teacher with more than 25 years of classroom experience, to bring Zoe to her classroom on a limited basis. The terms were that Zoe would be brought to school no more than three times a week and with a 24-hour notice given to the principal. On the advice of her union representative and without legal representation, she agreed to this proposal.
One year later, the acting district superintendent sent a memo indicating that Zoe would no longer be permitted to accompany Ms. Otis to school for the 2004-05 school year. This decision was based primarily on the school principal’s stated belief that Zoe was not a bona fide service dog, but merely a pet.
The California Teachers Association provided legal counsel to Ms. Otis. Although the district superintendent who sent the letter to Ms. Otis denying access to Zoe and the principal who did not believe Zoe was a service dog have left the Irvine Unified School District, the case dragged on. Initially scheduled for trial in 2007, Ms. Otis’ legal team opted for mediation. The school district, dissatisfied with the recommended mediated settlement, asked for a second mediation, which for some unknown reason her counsel agreed to. As of March 2008, that legal process under state law continues and Ms. Otis has not been able to bring Zoe to class with her and, as a result, continues to struggle with her disability.
The Sandy Stefan Case
Sandy Stefan, a single mother, graduated from paralegal school in January 2007. In August she obtained a job in McComb County, Michigan working in a traffic court where she processed ticket fines.
Fearing she would not be offered the job if the traffic court magistrate knew she had a hearing dog, Ms. Stefan did not mention she was disabled and partnered with a canine assistant. The reality for people with disabilities is that appearing at a job interview accompanied by a canine assistant often precludes being offered a job. After working for a few weeks, she mentioned her hearing dog Ice and said she would like to bring him to work. The magistrate in charge of the court told her not to bring him in until the matter had been resolved by the city attorney.
Ms. Stefan worked at the counter where traffic tickets were paid and she explained that Ice would help her alert to her name being called, and to the ring of her cell phone. The magistrate indicated staff could alert her to sounds and the dog was not needed. Once again, management felt they could dictate what accommodations were required.
Ms. Stefan explained the dog was fully trained and she needed Ice in getting to and from work since Ice alerts to sirens and the cell phone. The magistrate said getting to and from work was not the court’s concern.
A meeting was called with the magistrate, chief judge and city attorney. Ms. Stefan did not have legal representation. The city attorney kept asking about Ms. Stefan’s degree of hearing loss. They were concerned about liability if Ice bit someone or if a member of the public were allergic to dogs. Ms. Stefan tried to counter these arguments without success.
The administrator/magistrate then suggested placing Ice in a carrying case or kennel located in the library at the back room of the office. It was also suggested she place a sign on the kennel indicating a dog was inside. She told the court administrator this was not a reasonable accommodation, since she would not have Ice’s alerting services and such separation would jeopardize his training and their partnership.
After seven weeks on the job with good evaluations, Ms. Stefan was informed her work was unsatisfactory and she was being fired. She then filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) in November 2007. The federal agency said there appeared to be merit in her claim of discrimination and they would be setting up a mediation. Five months later, that mediation has not taken place.
The Sheryll Craven Case
Sheryll Craven lives in Auburndale, Florida and has been employed by Winter Haven Hospital for 30 years. She works in the basement where she handles calls dealing with all sorts of hospital issues ranging from light bulbs needing replacement to the need for emergency interventions.
As a result of a degenerative neuromuscular disease, Ms. Craven’s mobility has become limited. She decided to train her own service dog and have Chelsea certified by New Horizons Service Dogs, a Florida-based training program. Although such certification is not required by law, she felt this would give Chelsea greater credibility.
For two weeks she brought Chelsea to work with her without incident. However, one day she was on an upper floor when a vice president of the hospital questioned her right to be there with Chelsea. Immediately thereafter, Ms. Craven was told by her supervisor that her service dog was no longer welcome in the office.
As an alternative to using the dog, Ms. Craven was asked to go to occupational therapy to be fitted with some orthopedic equipment, ending her need for Chelsea’s assistance. These accommodations did not mitigate the need for the dog. Without her service dog’s balancing and bracing tasks, Ms. Craven has been forced to walk using a support cane, which places her at risk of falling.
Facing a situation which she felt was discriminatory, Ms. Craven filed a complaint with the EEOC, and a mediation took place March 5, 2008. In order to keep her job and pension, Ms. Craven has agreed not to bring Chelsea to work with her. She felt forced to accept several other accommodations, which, once again, were not determined by her and her doctors, but by management.
In these cases, the employer believed he/she had the sole right to determine the nature of a reasonable accommodation. Such a view was successfully challenged in the Branson case where it was clearly indicated that Dr. Branson’s employer violated the law by not engaging in an interactive process to determine the nature of a reasonable accommodation.
Employers have to conform to the law and recognize they are not the sole arbiters of reasonable accommodation. It is to their advantage to recognize the costs involved in providing alternative accommodations may add up to hundreds of thousands of dollars and still not meet the disability-related needs of the employee. In contrast, the cost of permitting the dog in the workplace has little if any monetary costs. In addition, litigation of these cases can be extremely costly as shown by the Branson case. Patrick Kronenwetter, Dr. Branson's attorney, indicated that while Dr. Branson was awarded $300,000, the maximum permitted by federal law, the case cost the VA more than $1,000,000.
When an employee requests permission to bring his/her assistance dog to work as a reasonable accommodation for a disability, the employer should recognize the only basis for denial of this request is:
- the employee is not a qualified person with a disability as defined by the ADA, the Rehabilitation Act or state law;
- the assistance dog/service animal does not meet the definition of a service animal in the ADA or other law;
- the presence of the service animal would place an undue burden on the employer; or,
- the presence of the service animal would interfere with the employer’s ability to conduct business.
In these instances, the burden of proof is on the employer, not the employee.