So, a man with a miniature pony walks into a bar. . .

Sound like the beginning of a joke?  In any public place, it is no joke, and you might be liable for discrimination if you ask the individual to leave.  This is because dogs and miniature horses may qualify as service animals if they have been trained to perform a specific task related to an individual’s disability.

Under Massachusetts law, only a dog qualifies as a service animal, and its owner must have a sensory or physical disability.  Federal law is broader.  It permits miniature horses to qualify as service animals, and their owner may have any kind of disability, including a psychiatric disability.  However, even under federal law, the animal must be “trained to perform a specific task.”  If the animal’s sole function is to provide emotional support and comfort to the disabled individual, it does not qualify as a service animal.  Such “emotional support” animals need not be permitted in public places, with the exception of planes and the common areas of housing developments. 

How can you tell if the dog or miniature horse is a service animal?  In some cases, it may be obvious, and in such cases, you cannot ask the owner any questions about the animal or the disability.  If it is not obvious, however, you are permitted to ask only two questions:

1. Is the animal required because of a disability?
2. What work or task has the animal been trained to perform?

You cannot ask about the nature of the person’s disability, ask for documentation of that disability, or ask that the animal demonstrate the task it has been trained to perform.  You also cannot require the person to provide any type of certificate or identification papers.  The law does not require that a service animal be trained by any particular organization.  In fact, disabled individuals are permitted to train the animal themselves.  And, under Massachusetts law, service animals in training are to be treated the same way fully-trained service animals are treated – their handlers must be permitted into all public places on the same terms as any other member of the public.

Special rules apply to planes, which allow emotional support animals to board even if they have not been trained to perform a specific task, and even if the animal is neither a dog nor a miniature horse.  After all, you probably do not want your seatmate on an intercontinental flight to have a panic attack at 10,000 feet in the air.  As long as the emotional support animal is not a snake, reptile, ferret, rodent, sugar glider, or spider (which is highly likely to cause you to panic instead! ) it may be permitted on the plane. 

Special rules also apply to housing.  Unlike other places of public accommodation, emotional support animals must be permitted in common areas of residences, such as the lounge or entry of a condominium.  And if a landlord has a “no pets” policy, it must make an exception for service animals as well as emotional support animals.  It may not charge extra fees for allowing the animal in the dwelling.  However, a housing provider may require medical documentation that the animal is needed because of a disability, if the disability is not obvious or known. 

There are some limits.  If a service or emotional support animal in a public place is exhibiting threatening behavior, you may ask that it be removed.  The person with the animal is responsible for controlling the animal at all times.  This means that the animal must be on a leash, and the person with the animal must attend to all of its needs including – shall we say – “waste disposal.”

What if another customer has allergies?  If the allergies are severe enough to interfere with a daily life activity, such as breathing, then this customer is also disabled.  In such a case, the law requires you to attempt to accommodate both individuals.  In a restaurant, the two individuals could be accommodated by moving them to different areas of the room.  But beware; you can’t discriminate by moving the customer with the service animal to a materially less desirable location – for example, a  windowless back room—just because that person has a service animal.

So, what is the bottom line on service animals?  Treat their owners the way you would treat any other customer.

When a man with a miniature pony walks into a bar . . . serve him (the man, that is) a drink.

And that is no joke.

To discuss how these laws may apply to you or your business, please contact Lucy Prashker or Sarah Kohrs, members of the Cain Hibbard & Myers Litigation Department.