June 26th, 2018
What happened?
On June 20, 2018, Delta announced a plan to ban pit bull-type dogs as service animals, effective July 10th (we saved a PDF version of the announcement). Such a ban violates regulation 14 CFR §382.19(c)(1) of the Air Carrier Access Act (ACAA), as the guidance on the regulation indicates (the guidance excerpt is below).
Further, after we pointed out the planned policy’s conflict with the ACAA to the United States Department of Transportation (DOT) on June 21st, DOT released a statement to the media and us indicating that “A limitation based exclusively on breed of the service animal is not allowed under the Department’s Air Carrier Access Act regulation.” The full DOT statement is at the very bottom of this page.
Upon receiving DOT’s statement on June 26th, we asked our Delta contacts what their plans are regarding their faux pas (or foe paws!) and will update this page when we find out.
Are you worried you might be denied?
If an airline tries to deny you access with your service dog based only on perceptions about your dog’s breed in general, remain calm and go up the chain of command. Some lower-level employees make mistakes that a boss might be able to fix for you.
Ask to speak to a manager if the airline tries to deny access before you reach the airport, or a “CRO” (Complaint Resolution Officer) if the denial happens at the airport. If you provide DOT’s statement (below), the airline employee might reconsider—you might avoid being improperly denied.
Have you been denied solely based on breed/type?
Regardless of an airline’s policy, if you are denied accommodation with your service dog on any airline solely because of its breed/type (or presumed breed/type), rather than based on an individualized assessment (see guidance below that relates to 14 CFR §382.117(f)), we strongly encourage you to at least file a complaint with DOT so they are aware and may take enforcement action. An attorney may advise you about other available actions.
Reference: DOT’s regulation guidance
Below we quote the portion of DOT’s 2008 guidance we referenced above:
If the carrier’s reason for excluding a passenger on the basis of safety is that the individual’s disability creates a safety problem, the carrier’s decision must be based on a “direct threat” analysis. This concept, grounded in the Americans with Disabilities Act, calls on carriers to make an individualized assessment (e.g., as opposed to a generalization or stereotype about what a person with a given disability can or can’t do) of the safety threat the person is thought to pose. In doing so, the carrier must take into account the nature, duration and severity of the risk; the probability that the potential harm will actually occur; and whether reasonable mitigating measures can reduce the risk to the point where the individual no longer poses a direct threat. In using its authority to make a direct threat determination and exclude a passenger, a carrier must not act inconsistently with other provisions of Part 382. Direct threat determinations must not be used as a sort of de facto exception to specific requirements of this Part (e.g., the prohibition on number limits).
Note that DOT is leaning on the Department of Justice (DOJ) analysis here, and DOJ explicitly does not allow breed bans under the Americans with Disabilities Act (ADA). That would be relying on a “stereotype”, as contraindicated above.
For DOJ’s explanation, see both the “Alerting to Intruders.” and “Breed limitations.” sections under “Service animals.” in DOJ’s 2010 “Appendix A to Part 36—Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities“, or the “BREEDS” section in DOJ’s 2015 “Frequently Asked Questions about Service Animals and the ADA“.
Reference: DOT’s June 2018 statement
Here DOT’s full statement on breed bans, sent to us by email:
Under DOT’s current rules implementing the Air Carrier Access Act, airlines are required to accommodate passengers with disabilities who depend on the assistance of service animals within limits. Airlines are not required to accommodate unusual service animals, such as snakes, reptiles, ferrets, rodents, and spiders. Recently, the Department issued a Statement of Enforcement Priorities on Service Animals to inform airlines and the public that its Aviation Enforcement Office intends to exercise its enforcement discretion by focusing its limited resources on ensuring that U.S. airlines continue to accept the most commonly used service animals such as dogs for travel. A limitation based exclusively on breed of the service animal is not allowed under the Department’s Air Carrier Access Act regulation. However, an airline may refuse to carry service animals if the airline determines there are factors precluding the animal from traveling in the cabin of the aircraft, such as the size or weight of the animal, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, or whether the law of a foreign country that is the destination of the flight would prohibit entry of the animal. The Department’s Office of Aviation Enforcement and Proceedings investigates every disability complaint that it receives involving airline service, including investigating complaints from passengers alleging an airline denied them travel by air with a service dog. At the conclusion of an investigation, a determination is made as to whether the law was violated. In enforcing the requirements of Federal law, the Department is committed to ensuring that our air transportation system is safe and accessible for everyone.