[Nfbf-l] Guide dog policies and solutions

Wed May 1 18:59:38 UTC 2019

Bill,

	I have written on this topic in the past and will reiterate - very
briefly - what I share as standard protocol, focusing upon the topic at hand
concerning one's allergies to dog dander. First of all, the law classifies
individuals with disabilities as a protected class, prohibiting
discrimination on the basis of belonging to that class. Other protected
classes protected by law include race, creed, ethnicity, gender, and gender
identification. An individual with a disability accompanied by a service dog
has the legal right to access the goods and services of a public
(governmental)  entity under Title II of the ADA, and those of private
entities providing public accommodations under title III of the Act. The
only exceptions would be if the presence of a service animal poses a direct
threat, defined as "a significant risk to the health or safety of others
that cannot be eliminated by a reasonable modification of policies
practices, or procedures", if the animal is out of control and the handler
does not take immediate, effective measures to correct the behavior, or if
the animal is not housebroken. It is important to note here that it must be
demonstrated the presence of the dog poses a direct threat; it cannot be
assumed; furthermore, I do not need to prove my dog does not pose a direct
threat. This is known as an affirmative defense. In other words, one must
prove something does exist not that something does not exist. 

	The statistical information about the prevalence of an allergy to
dog dander that rises to the level of a disability is, as stated in my
previous message, <0.005%, or 5 in 100,000. According to this research,
those with such an allergy would have severe anaphylaxis even if the dander
were present on a person's clothing, even if a dog were not physically
present. 

	If an individual claiming an allergy to dog dander objects to the
presence of the dog, it is up to the individual with the allergy to take
appropriate measures to mitigate the situation; it is not up to the
individual with a disability to take such measures, as that person is a
member of a protected class whose rights preempt the person not a member of
that class. So, if I enter a restaurant in which the only seat is near
someone claiming an allergy to my dog, it is up to the individual with the
allergy to mitigate that situation. In the case of a passenger on para
transit, it is understood that the transportation is a shared ride service
and that there may be times an individual will be required to share that
ride with someone with a service animal. If my ride arrives and a fellow
passenger objects to the presence of my guide dog, it is up to the provider
to make other arrangements for that passenger, not to deny my ride.

	If a person has an allergy to dog dander that rises to the level of
a disability, we now have what is known as "competing interests". Two
members of a protected class are now competing for the same protections. In
such a case, the person first served is secured the right and the second
person will need to mitigate the situation. In the para transit
illustration, if I am the second person with competing interests, I will
need to wait for another ride. This would not be considered discriminatory. 

	In all cases involving allegations of discrimination based upon
membership in a protected class, the first requirement is to demonstrate
standing. This means that, should I file a complaint alleging discrimination
based upon the presence of my guide dog, I would need to demonstrate two
elements before the case would be heard: I would first need to demonstrate
that I am a person with a disability protected by the law under which I file
a complaint and that my guide dog meets the definition of "service animal",
"any dog individually trained to perform tasks or do work for the benefit of
a person with a disability". Failure to prove these two elements would cause
a nolle proc or dismissal of the case.

	If there are any questions, I am happy to answer them so we, as
advocates, can provide the most accurate information.

Fraternally yours,
Marion

-----Original Message-----
From: Nfbf-l [mailto:nfbf-l-bounces at nfbnet.org] On Behalf Of Bill Outman via
Nfbf-l
Sent: Wednesday, May 1, 2019 1:44 PM
To: 'NFB of Florida Internet Mailing List'
Cc: Bill Outman
Subject: [Nfbf-l] Guide dog policies and solutions

Good afternoon, list.  

I have noted with interest the recent discussion about guide policies
relating to the paratransit contractor that has graciously volunteered to
provide transportation service to those leaving the convention on Memorial
Day.  

Marion, your expertise on the detials of the law is unquestioned.  Yet I am
troubled by seeming lack of consideration for those who may be facing a
legitimate issue.  I understand this issue has been used as a cover
discriminatory actions borne out of ignorance, but I have a difficult time
believing this is the case in every instance.  

Those of us who profess a Christian faith are called to not only consider
our rights but also show due concern to the rights and needs of others as
well.  We cannot just say, "Sorry, Charlie" to those who may be facing
difficult challenges such as an allergy that we may not always be aware of.
The vehicle space issue, yes, has been abused, but at some point does have
some legitimacy, as vehicles are of finite size.  

What I need you to do is propose an affirmative solution, not just state
what is prohibited in law and regulation, to these issues.  What
accomodations/arrangements are permitted, and would in fact be adoptable as
best practices, that would satisfy both the legal requirement for equal
treatment and address the health and safety needs of other riders/drivers of
various modes of transport?  

I don't want us to merely state what we are against, but what we would be in
favor of.  

Bill Outman 

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