Don’t Be Distracted by the Peacock Trying to Board an Airplane: Why Emotional Support Animals Are Service Animals and Should Be Regulated in the Same Manner

39 Pages Posted: 17 Aug 2018 Last revised: 10 Sep 2018

See all articles by Amanda Foster

Amanda Foster

Nova Southeastern University Shepard Broad College of Law

Date Written: August 3, 2018

Abstract

Although fifty percent of all Americans are diagnosed with a mental illness or disorder at some point in their lifetime, including one in ten women, and mental illnesses are the third most common cause of hospitalization for adults under forty-four, the ADA’s narrow approach to defining service animals only protects a certain group of people with disabilities using a certain type of animal — dogs who perform tasks associated with the person’s disability. This narrow approach does not consider the thousands of people who use emotional support animals to alleviate or mitigate the symptoms associated with their mental health issues. To provide parity, it is necessary to include emotional support animals within that definition. Despite the prevalence of mental illness, there is a societal backlash against emotional support animals who provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not meet the ADA definition of service animal due to their lack of specialized training. The FHA and ACAA have provided protection and accommodations for people using emotional support animals, but that protection is in jeopardy. In response to uncertainty over the definition of emotional support animals, on April 24, 2018, Senator Burr (R-NC) introduced a bill to amend title 49 of the United States Code, which would make changes to the ACAA such as only allowing service animals as defined by the ADA to be uncaged onboard aircraft's, requiring service animal behavior training for air carrier passengers, and creating a criminal penalty for fraudulently claiming that an animal is a service animal used for disability needs. If Senator Burr’s bill is passed and the ACAA is restrained from allowing emotional support animals to be service animals under the ACAA, then people with mental health issues will once again be stigmatized and treated as second class citizens. Emotional support animals are also on trial in the regulatory realm. The DOT is currently seeking comments on ways to improve the ACAA regulation to ensure nondiscriminatory access for individuals with disabilities to use their service animals onboard airlines while attempting to deter “fraudulent use of other animals not qualified as service animals” and prevent use of “animals that are not trained to behave properly in the public.” Clear regulation is needed to ensure that all people with disabilities can use a service animal, including emotional support animals, if that animal will assist him or her with alleviating or mitigating the symptoms associated with his or her disability. Do not let the peacock trying to board the airplane distract from the real issue at hand. Mental health matters and people who experience mental health issues and need emotional support animals in public places, including on mass transit, to participate in society, should not be denied this accommodation based on fear that some people may fraudulently claim that their pets are emotional support animals. If we legitimize the process of bringing an emotional support animal in public, including on mass transit, then we make steps in continuing to take away the stigma of mental health issues. Parity is essential to accomplishing that goal.

Keywords: ADA, FHA, ACAA, Service Animal, Emotional Support Animal, Peacock, Air Travel, Legislation, Disability, Mental Health, Mental Illness

Suggested Citation

Foster, Amanda, Don’t Be Distracted by the Peacock Trying to Board an Airplane: Why Emotional Support Animals Are Service Animals and Should Be Regulated in the Same Manner (August 3, 2018). Albany Law Review, Vol. 82, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3225891 or http://dx.doi.org/10.2139/ssrn.3225891

Amanda Foster (Contact Author)

Nova Southeastern University Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
32
Abstract Views
160
PlumX