Congress enacted the Americans with Disabilities Act of 19901 (ADA) to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”2 In part, Congress achieved this purpose by requiring public accommodations to “permit the use of a service animal by an individual with a disability.”3 Recently, in C.L. v. Del Amo Hospital, Inc.,4 the Ninth Circuit held that the ADA prohibits imposing a certification requirement on an animal who meets the functional definition of a “service dog.”5 Judge Gould ensured that the decision aligned with existing Department of Justice (DOJ) service animal regulations. But at the same time, he stated a gloss on the service animal standard — asking “whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living”6 — that, if adopted in lieu of those regulations, would better achieve the ADA’s lofty goals.
Plaintiff C.L. is a public school speech-language pathologist who is a survivor of severe abuse by her family and a romantic partner.7 As a result, she developed complex post-traumatic stress disorder, dissociative identity disorder, anxiety, and depression.8 In 2011, C.L.’s treating psychologist, Dr. Michael Foust, suggested that a service dog might help her manage her symptoms.9 After researching her options, C.L. concluded that a trained service dog was outside of her budget.10 However, she learned that she could train a dog herself to meet her individualized needs.11 In 2013, C.L. obtained an eight-week-old bichon-poodle mix puppy named Aspen.12 Over the following months, C.L. trained Aspen to perform various tasks, including waking her from nightmares, alerting her to people approaching, and “grounding” her.13
Del Amo Hospital, Inc. is a psychiatric hospital in Torrance, California.14 The hospital hosts the National Treatment Center Program (“NTC Program”), an inpatient program that assists with trauma stabilization.15 C.L. checked herself into the NTC Program seven times between September 2015 and August 2017.16 She requested to bring Aspen with her each time, but Del Amo Hospital denied the requests.17 On March 23, 2018, C.L. filed suit in the Central District of California, challenging Del Amo’s denials under Title III of the ADA18 and California’s Unruh Civil Rights Act19 (“Unruh Act”).20
After a bench trial, the district court entered judgment for Del Amo Hospital.21 Judge Carter concluded that while C.L. has a disability as defined by the ADA, she failed to meet her burden to show that Aspen was a service dog.22 Even though C.L. had trained Aspen, the judge found it decisive that she “did not receive a certification of Aspen as a service animal.”23 Crucially, the court noted that a service dog trainer who testified during the trial “contradicted” herself when she stated that she believed Aspen to be a service animal but that she would not certify C.L. and Aspen “as a service dog and handler team.”24
The Ninth Circuit vacated and remanded.25 Writing for the panel, Judge Gould26 ruled that “the ADA prohibits certification requirements for . . . service dogs.”27 Although Del Amo Hospital attempted to frame the issue as a factual question of credibility reviewable only for clear error, Judge Gould concluded that the appropriate standard was de novo because the district court “improperly considered certification to be . . . legally necessary.”28 Judge Gould found the district court’s legal conclusion erroneous for three reasons.
First, Judge Gould reiterated the definition of “service dog” from the ADA’s implementing regulations: “[A]ny dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability,” so long as the tasks or work are “directly related to the individual’s disability.”29 There is no mention of particular certification standards nor of a “requirement as to the amount or type of work” the dog must perform.30 However, the court noted that “a well-trained companion animal that happens to alleviate a person’s anxiety would not suffice”; rather, the dog must be affirmatively “trained” so that he does not “merely behave in a way that dogs naturally do.”31
Second, Judge Gould pointed out that the DOJ has repeatedly suggested that service animals “need not be formally certified.”32 In 2010, the DOJ explicitly rejected suggestions to “adopt ‘formal training requirements for service animals,’” explaining that mandatory certification would limit access to service animals to those with substantial financial means.33 In addition, the DOJ permits public accommodations wishing to determine whether an animal is a qualifying service animal to ask only two specific questions: whether the animal is “required because of a disability” and “what work or task the animal has been trained to perform.”34 Judge Gould concluded that the district court erred when it imposed a requirement for individuals with disabilities to obtain certification documents that public accommodations cannot ask to see.35 Judge Gould also noted that the DOJ’s “Frequently Asked Questions About Service Animals and the ADA” document suggests that the ADA “considers self-training to be a viable option.”36
Finally, Judge Gould determined that “requiring certification would hinder the goals of the ADA.”37 The ADA aims to help people with disabilities achieve “equality of opportunity, full participation, independent living, and economic self-sufficiency.”38 Permitting individuals with disabilities to self-train service animals furthers this goal.39 Because disability-related needs are unique, self-training offers a better opportunity to tailor the service animal’s work accordingly.40 Besides, Judge Gould noted, there is “no industry-wide consensus on the proper certification standards,” so requiring certification would simply “multiply litigation over which certifications are judicially valid.”41 Instead, the stated goals of the ADA are better served by simply asking: does the animal “consistently and reliably help a person with a disability in performing activities of daily living”?42
The Ninth Circuit remanded without reaching the second issue that C.L. argued: whether the district court had incorrectly concluded that her unimpeached testimony regarding Aspen’s training needed to be corroborated in order to satisfy the ADA.43 On remand, the district court determined that C.L. had shown that Aspen was a trained service dog.44 However, the court concluded that Del Amo Hospital had not discriminated against C.L. because bringing Aspen into the treatment center “would have fundamentally altered the nature of the service that Del Amo Hospital provides.”45
The question on which Judge Gould ended his discussion — asking “whether a service animal will consistently and reliably help a person with a disability in performing activities of daily living”46 — better achieves the ADA’s broad purposes than the DOJ’s existing service animal regulations. Judge Gould’s analysis concluded that Aspen could potentially qualify as a service animal under those regulations. But his gloss on the standard downplayed the fact that only some kinds of “work” — or “help,” as he put it — qualify. In 2010, the DOJ explained the distinction between “psychiatric service” and “emotional support” animals and explicitly excluded the latter from ADA protections, asserting that emotional support is not qualifying “work.”47 This restriction is both confusing and counter to the ADA’s broad goals. And further, it is unnecessary: the regulations contain safeguards that would prevent abuse even if emotional support qualified as “work” under the service animal regulations.
The ADA was enacted in 1990 to empower people with disabilities to participate fully in society.48 But over the ensuing decade, the Supreme Court narrowed the scope of the Act.49 In response, Congress enacted the ADA Amendments Act of 200850 to reinstate the broad protections that it had intended to establish with the ADA.51 Ironically, when the DOJ promulgated updated regulations to implement the amended ADA in 2010, it narrowed the service animal provisions. The 1991 regulations were quite broad, defining “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability.”52 But by 2010, the DOJ had noted an “increasing use of wild, exotic, or unusual species” as service animals,53 as well as consternation among covered entities over their obligations under the Act.54
In an effort to resolve these issues, the DOJ’s 2010 rules limited the definition of “service animal” to “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.”55 The agency also attempted to clarify a difference between “service animals” and “emotional support animals.”56 The DOJ explained that “the provision of emotional support, well-being, comfort, or companionship . . . do[es] not constitute work or tasks for the purposes of this definition.”57 Yet the agency also stated that “[p]sychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities.”58 Under the ADA, public accommodations must permit the use of psychiatric service animals, but the same protections do not apply for emotional support animals.59
As evidenced by Judge Gould’s efforts to illustrate the difference in his opinion, this distinction between psychiatric service and emotional support can be unclear. Judge Gould compared “a dog [who] may naturally jump up in [his] owner’s lap” with a dog trained specifically “to sit in her lap in a particular position and only in response to certain triggers related to the owner’s disability.”60 While the former might provide emotional support, only the latter could be a “service animal” under the ADA. But there is no specific task, type of service, or way of performing the task required of service animals.61 Accordingly, it is not apparent why a dog who provides emotional support in a way that consistently alleviates his handler’s ADA-qualifying anxiety should not be covered. As comments on the DOJ’s proposed rules pointed out, some individuals find that animals provide crucial emotional support that helps them fully participate in society.62
The DOJ’s explicit exclusion of emotional support work also has repercussions for psychiatric service dog handlers. Given the regulations’ broad guidance on the types of individual training that may qualify as “work,”63 it is difficult in some cases to discern whether an animal performs a psychiatric service task or emotional support. As a result, accommodations providers and members of the public sometimes harass legitimate service dog handlers for proof that the animal is a service animal.64 In states that make misrepresentation of service animals a misdemeanor,65 people with psychiatric disabilities may face a risk of being falsely convicted by a judge who concludes that a dog is “merely” an emotional support animal rather than a true service dog.66 High-profile media criticism of emotional support animals aggravates these tensions — even when media stunts are based on a common misunderstanding of the law.67 Such criticism can lead to skepticism and exclusion of legitimate psychiatric service dog handlers.68
Abandoning the psychiatric service/emotional support distinction in favor of Judge Gould’s gloss on the regulations would likely better achieve the ADA’s broad goals. Psychiatric conditions are prevalent in the United States,69 so a more flexible approach to psychiatric service animals may help meet the needs of a significant population of individuals with disabilities. Asking simply whether the animal “consistently and reliably help[s] a person with a disability in performing activities of daily living”70 could permit more individuals with ADA-qualifying depression, PTSD, or anxiety to work with a service animal. The question discourages harassment and excessive attention on whether an animal “just” provides emotional support rather than some more clearly identifiable task and focuses instead on whether the animal helps a person covered by the ADA engage in major life activities.
Concerns that including emotional support as qualifying work might lead to widespread abuse are likely overblown. First, ADA regulations include codified requirements as to behavior and species. As previously noted, service animals must generally be dogs.71 Additionally, although public accommodations are normally required to permit an individual with a disability to use their service animal,72 this requirement is not unbounded: a public accommodation may refuse to admit the service animal if he is “out of control” or “not housebroken.”73 Second, the law permits exceptions to the requirement to admit service animals where it would “fundamentally alter” the accommodation’s operations or services.74 For example, sterile medical facilities need not admit service animals,75 nor must psychiatric treatment facilities — as the district court in C.L.’s case concluded on remand.76 Finally, public accommodations may exclude any service animal that “poses a direct threat to the health or safety of others.”77
In sum, the DOJ regulations are clear that (1) a service animal must be under control and housebroken, (2) the animal must assist the handler in a way that relates to their disability, and (3) the animal’s handler must qualify for ADA protections. If the animal is a threat to safety or would “fundamentally alter” the accommodation or service, the animal may be excluded. Given these requirements, it is unclear how much more work is done by distinguishing between an animal individually trained to assist an individual with a qualifying psychiatric disability and an animal who provides emotional and therapeutic services to an individual with a qualifying psychiatric disability in a way that supports their participation in major life activities.
Focusing covered entities and the public on these other requirements could shift attention to the animal’s behavior and the accommodation’s legitimate health and safety requirements, thereby limiting confrontations to instances where the animal is creating a danger or disturbance. In other cases, handlers should be given the benefit of the doubt so as to decrease the likelihood of confronting or excluding a person with a real, but perhaps not immediately visible, disability. If a dog and handler team meet all of the other requirements, perhaps it should not matter if the work the dog performs is emotional support. What should matter is simply whether the animal “consistently and reliably help[s] a person with a disability in performing activities of daily living.”78