Some groups representing people who are blind have objected to any service dogs -- other than guide dogs for people who are blind -- being allowed in public places. A trade organization of schools that train service dogs has objected to the law allowing people to train their own service dogs-- a business issue for them, since those who train their own service dogs will not be using their services.

By lobbying the U.S. Department of Justice, these groups obtained a change in the service animal "guidance" published by DOJ. They didn't get all the changes they wanted, but they did make some progress. They convinced DOJ that people seeking equal access with their service animals could be asked -- as a condition of access -- what task their service dog is trained to perform.

On the surface, this doesn't seem to be a big deal. But how does a person whose service dog provides assistance with a mental illness-based disability answer that question without being forced to disclose the nature of that disability? How does a person with a seizure alert dog identify the work done by the service dog while maintaining privacy concerning having a seizure disorder?

A second front has now been opened by business owners who have effectively used the courts to narrow the scope of who is protected by the ADA. This new front is to use the current administration in Washington and the courts to restrict the equal access of those still protected by the ADA.

Following the publication of this guidance, a large retail company, Costco, changed their service animal policy. They now tell employees to "inquire of the animal's owner what tasks or functions the animal performs that its owner cannot otherwise perform."

An individual in Washington state sued Costco over this policy, using a lawyer with no experience in ADA litigation. This lawyer simply did his own thing, without seeking any assistance from lawyers experienced in ADA litigation or lawyers with experience in service animal-related cases. This lawyer did not seek the assistance of any recognized experts of service animal issues and related laws.

Thanks to this lawyer and his client, what DOJ wrote as an ill-advised guidance to businesses now has the force of persuasive case law. When the plaintiff's lawyer filed arguments against Costco's motion to have the case dismissed by the U.S. District Court, and to have their policy upheld as lawful, the Judge stated that the arguments were "not persuasive" and granted Costco's motion. (The case is Susan Grill vs. Costco Warehouse Corp., Case No. C03-2450Z, and was heard in U.S. District Court, Western District of Washington, in Seattle. The Order was entered on Jan. 22, 2004.)

WHAT DOES THIS MEAN to people with disabilities who use service animals? What does this mean to people with disabilities in general?

For the first time since the passage of the ADA, a federal court has ruled that a question that would compel disclosure of the nature of one's disability can be asked as a condition of access. For the first time since the passage of the ADA, business employees have been given the right to subjectively decide whether or not to provide access to individuals with disabilities who are assisted by service animals.

This could be the beginning of a very slippery slope.

The federal judge did not address what a business can or should do with the answer given by the disabled person to the question. But the judge would never have approved the idea of letting a business ask the question without recognizing that a business has the right to then act -- or refuse to act -- based on the response to that question.

"What is the nature of the disability that makes you need a service dog?" "Why do you need a service dog?" No matter who gets to ask that question, whether they're the owner of a business, the high school student working at a McDonalds, or the older adult greeter at a Wal-Mart, they"ll now have the power to deny access, based on the answer. They may decide that the task you mention -- "I need my dog to help with my seizure disorder" -- is not sufficient to allow you to come in with your dog.

What was a civil right under the provisions of the ADA has now become conditional -- on the subjective judgment of any person guarding the door of a business or local government facility.

As bad as this problem is for service dog users, it foretells a much greater potential problem for all people with disabilities. The court, in its decision, has ignored the regulatory law that prohibits asking questions that could cause a disclosure of private information concerning the nature of one's disability. Will they next allow businesses to ask why a person is using a wheelchair before providing wheelchair-accessible seating in a movie theater, arena, or stadium? Will businesses be allowed to decide that, if a person can walk enough, they must transfer to a fixed seat instead of being given wheelchair accessible seating?

Maybe DOJ will next write a "guidance" that allows businesses to determine the extent of one's impairment before providing requested reasonable accommodations.

I can see it now: A person using a wheelchair cannot get down the aisles of a department store because the aisles are too narrow. That customer asks for shopping assistance as a reasonable accommodation. Will the DOJ and the federal courts next decide that the merchant can ask the customer if she can stand and walk at all? Will they allow the merchant to decide that, if the person can walk "enough," they can be denied shopping assistance? Maybe a store owner who fears that a dropped cane or crutch would damage merchandise will want to decide if the customer "truly needs" the cane or crutch. If they don't think so, can the merchant just tell the customer they must leave their cane or crutches outside the store?

Now that the access of people with service dogs can be obstructed by any employee based on their own subjective judgment, what will come next?

The handwriting is on the wall.

Posted Feb. 12, 2004.

ADA consultant Frederick A Shotz is president of the Association of Disability Advocates in Ft Lauderdale, FL.

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Any device -- animal, assistant, cane, crutch -- that helps an individual with their basic needs and allows them to function in society as capable, producing, law-abiding assets to their community should be allowed -- no questions asked. An individual with no need of a service dog, or device would not have one!