The Carrot or the Stick?
IMAGINE YOURSELF AT WORK one morning. A new gift shop has opened near your office and you want to go there during your lunch hour. After work you plan to take a taxi to meet a friend for dinner and a show. During these excursions, you may find the gift shop does not have what you want, the air conditioning in the taxi is not working, the meal you order is not served hot and the play was not worth attending. As disabled people partnered with assistance dogs, we may face all these problems, plus the possible hassle of being refused a ride in the taxi and entry to the gift shop, restaurant or theater. Unfortunately, when we discuss the issue of whether the rights of people with disabilities to be accompanied by their assistance dogs in public accommodations should be fostered through educational activities or punitive approaches, the impact on people with disabilities of being rejected by able bodied gatekeepers rarely enters the discussion.
Impact of Access Denials
With a collective history of more than 60 years working with guide dogs, we have had our fair share of access denials. Usually these challenges in restaurants and hotels are overcome. But it is impossible to educate the taxi driver who slows down to pick us up, observes our guide dogs and then speeds away!
In March 2005 we traveled from our home town of Fresno, California to New York City to participate in a ceremony honoring the Lions Clubs of the world for their role in fostering the work of the United Nations. Within a three-day stay in New York City,
The decision to train with a guide, hearing or service dog is based on the desire to improve one's quality of life, independence, safety and mobility. However, there are some costs, as well as benefits, resulting from this lifestyle choice. Veterinary care and feeding the canine assistant is an expected commitment, but the psychological cost of facing public humiliation through access denials is rarely factored in.
Many of our peers describe the high levels of anger and frustration they face when confronted by the phrase, "You can't bring that dog in here!" A universal complaint of people with disabilities is being treated like secondclass citizens. They feel demeaned and diminished. Certainly this is the case when a disabled person is denied entry to a business or office because of the presence of the dog who is intrinsic to maintaining an independent way of life. Frequently, these confrontations take place in the presence of a friend or relative and in public places, increasing the sense of humiliation and frustration. In some cases we are aware of, assistance dog partners have either given up their dogs or decided not to work with a successor.
What's To Be Done?
When the Americans with Disabilities Act was being debated before its passage in 1990, the issue of including punishments for noncompliance was hotly debated. Members of the disability rights movement were afraid that including punitive measures might result in the bill's not being approved. Since the law was viewed as a civil rights measure, the feeling was it would eventually establish a societal climate in which full integration of people with disabilities in the larger society would be a natural outcome. This, of course, has not happened, and many mandates of the ADA have not been fulfilled.
Although protection of the rights of disabled people working with canine assistants (referred to as service animals) is guaranteed by the regulations implementing the ADA, no punitive measures in the form of fines are included. The exception is in the area of employment discrimination, where significant fines, damages and payment of legal fees can be assessed. Under federal or national law, the only time an assistance dog partner can receive compensation for an access denial on the part of a public accommodation, such as a hotel, restaurant, taxi, amusement park, etc. is if the U. S. Department of Justice decides to take on the complaint. This has happened on several occasions, including a case in which an airport shuttle service refused to transport a woman because she was traveling with a guide dog. Usually the Department of Justice will not act on behalf of an individual complainant.
In contrast to the ADA, many states have laws with the provision of fines and in some cases criminal penalties. In California a public entity such as a restaurant or hotel that denies access is liable to a fine of $5,000. (This is a higher fine than the $4,000 in damages for failure to remove barriers.) The California penal code defines such refusals as a violation of the criminal law and the offender may spend time in jail. An interesting recent case involved an opthalmologist who refused to let a patient accompanied by a guide dog into his office. The ophthalmologist eventually paid a fine of $5,000 to the school that trained the guide dog, received education on the way in which a guide dog helps his/her blind partner and changed his office visitation policy.
Some Educational Approaches
When the Department of Justice was designated as the major enforcement agency of the ADA, it developed a technical assistance program to help educational, commercial and government entities to understand the law. A highly trained cadre of technical assistants is available through a toll-free national telephone hotline. Questions are answered immediately and documentation from the law is provided if needed. We have used this service to verify our interpretation of elements of the ADA. We have also directed many others to this information source.
A number of assistance dog training programs have developed radio and television public service announcements focused on the rights of disabled people to be accompanied by their assistance dogs into all places open to the public. Frequently, these announcements are made by well-known actors and actresses. The California Hotel and Lodging Association has produced two short videos directed at hotel and motel proprietors and police personnel. These are now being reproduced and distributed to members of the national hospitality association and police departments throughout the country.
Some Enforcement Approaches
One of the most significant federal cases involving assistance dogs and based on the ADA was brought against the state of Hawaii by a group of guide dog partners. The federal court found that the state of Hawaii, in imposing a 120-day quarantine period, prevented blind visitors from bringing their guide dogs with them to the island and was a violation of the ADA. Thus, the state of Hawaii was forced to change its quarantine rules and establish a procedure by which blind visitors could bring their dogs with them without going through a quarantine. Although the state argued that it was only trying to protect its status as a rabies-free environment, the court found in favor of the plaintiffs. More recently, quarantine rules have also been changed for hearing and service dogs.
When Dr. Chris Branson, paralyzed as a result of a horseback riding accident, informed her employer, the director of the Veterans Administration Hospital in Chicago, that she planned to train with a service dog, she was told the dog would not be permitted in her work setting. When those in power refused to be educated, punitive means must be employed. After following all the internal government grievance procedures, Dr. Branson filed a case in federal court. When the case was finally heard in 1999, Dr. Branson was completely vindicated, the hospital was penalized in the amount of $300,000, the maximum under federal law, and had to pay all attorney fees and change its policy to allow Dr. Branson's service dog to accompany her to work.
A recent case in our home town of Fresno, California is an example of education and enforcement working in tandem. A woman with a guide dog was denied entry to a restaurant. She called us and we advised her to contact the police, since this is a criminal offense in the state. However, when she called, the police had no knowledge of the law and were not inclined to do anything. On hearing this, we intervened and called our contacts in the police department. Toni was asked to come to a training meeting of police officers to discuss the civil and criminal consequences of access denials. As part of this educational effort she showed the video developed by the California Hotel and Lodging association.
The IAADP Approach: Education and Dispute Resolution
The International Association of Assistance Dog Partners, a consumer advocacy organization established in 1993 and currently numbering more than 2,000 members, has focused its primary attention on the educational approach. In 1996 it created an access brochure to help members educate the public, including taxi drivers, restaurant managers, hotel proprietors, retail store clerks, and others about the guaranteed right of disabled people to be accompanied by their assistance dogs in all places open to the public. The brochure has the part of the ADA pertaining to assistance dogs translated into six languages and provides space for the IAADP member to place a photograph of himself/herself and the assistance dog in the brochure.
Members quickly reported an almost magical quality to this outreach effort. The brochure was republished on several occasions in issues of the IAADP newsletter, Partners' Forum, where it could easily be transcribed into multiple copies. It has just been revised and will be republished in a future newsletter issue. IAADP also has a video graphically illustrating the work performed by guide, hearing and service dogs.
But sometimes education does not work! Several years ago, an IAADP member partnered with a service dog was denied the right to have her dog with her in the hospital. The staff at Johns Hopkins Medical Center in Maryland claimed the service dog was not needed and patients' rooms were not covered by the ADA. On this occasion the Department of Justice took the case on and eventually the hospital was forced to pay $25,000 to the complainant and change its policy to accept assistance dogs in the hospital. IAADP supported this member's legal action with advice and encouragement.
Here in the U. S. it seems the best approach to eliminating problems of access for disabled people and their assistance dogs is emphasis on education, the carrot or reward approach. However, when educational efforts do not have the desired effect, compliance should be enforced through punitive means, the stick.
Posted June 23, 2005.
Ed and Toni Eames, authors of Partners in Independence: A Success Story of Dogs and the Disabled, are founding board members of the International Association of Assistance Dog Partners and are partnered with guide dogs Keebler and Latrell. They are Adjunct Professors of Sociology at California State University Fresno. They can be contacted at firstname.lastname@example.org.
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