The recent case of a woman who tried to bring a peacock on board a United Airlines Inc. flight attracted extensive (traditional and social) media attention — and some mirth. For airlines, however, the incident was not a laughing matter. Huge and growing numbers of passengers are claiming that their pets are “comfort” or “emotional support” animals, or ESAs — thereby requiring airlines to accommodate the animals in aircraft cabins on the basis that the passengers have disabilities.
In 2017, U.S. airlines accommodated more than three-quarters of a million ESAs in cabin and predict that, absent action by the U.S. Department of Transportation, those numbers could increase by more than 150 percent over the next five years. These animals pose a real threat to the safety of other passengers, airline staff and air travel generally.
In addition to typical domestic pets such as dogs and cats, airlines have been asked to accommodate wild animals, including monkeys, pigs and fowl. The vast majority of these animals are not trained to perform any assistive task for a passenger with a disability; indeed, many are not trained at all, and are unprepared for the often-disorienting experience of traveling in the confined space of an aircraft cabin.
Consequently, as the number of ESAs has exploded, airlines have experienced a disturbing increase in incidents involving animal misbehavior in airport terminals and on board aircraft. The most egregious of these incidents involve ESAs attacking and biting other passengers, airline crew and seeing-eye dogs. But other incidents involving growling, scratching, urinating and defecating have become commonplace.
In short, misbehavior by untrained ESAs is threatening the health and safety of passengers and airline personnel, including passengers with disabilities who are traveling with legitimate service animals (which, unlike most ESAs, are trained to perform tasks and behave appropriately in public settings, including on board aircraft).
For example, in June 2017, a window-seat passenger was trapped and mauled by a 40-50 pound pit bull, traveling as an ESA. The passenger's face required 28 stitches. Recently, an ESA bit a child on the forehead before the plane even left the gate.
Unscrupulous online vendors have abetted these ESA problems by selling service animal credentials to passengers who do not have a disability, thereby enabling them to claim a right to bring their animal in cabin. The DOT’s current disability and service animal regulations presumptively require airlines to accommodate ESAs, and strictly limit airlines’ ability to question whether an individual is disabled and whether their animal is legitimately a “service animal.” These passengers often claim that they need to be accompanied in cabin by their “ESA” because they suffer from a fear of flying. Fear of flying, however, is not a recognized disability under the law.
The DOT, in response to the growing ESA problem, is considering changes to its service animal accommodation rules. The DOT has recognized that its current rules could be “improved” to prevent “instances of fraud and ensur[e] consistency with other federal regulations.” In response, the airlines have presented a solution to the ESA problem that strikes a sensible balance between protecting the legitimate right of passengers with a disability to travel with trained service animals (typically but not always seeing-eye dogs) and preventing ESA-related fraud and abuse. The DOT should implement that solution.
The DOT’s reference to “consistency with other federal regulations” is telling. The U.S. Department of Justice regulates access for persons with disabilities to places of public accommodation throughout the United States, including stores, hotels, stadiums, airports and other modes of transportation (e.g., buses and trains). Unlike the DOT's rules, however, the DOJ’s regulations do not require places of public accommodation to accept ESAs — precisely because these animals are not trained to perform any task to assist an individual with a disability or behave appropriately in a public setting.
Thus, the DOT’s requirement that airlines accommodate untrained ESAs in cabin creates a bizarre and illogical disconnect between individuals having no right to bring an ESA into an airport terminal, bus or train, but having a DOT-conferred right to bring such animals into an aircraft cabin — a place of public accommodation that is particularly unsuited for untrained animals.
An aircraft cabin is a confined space in which people and baggage (and increasingly also animals) are transported in close proximity to one another for hours at a time, in a metal tube that tips and sways while moving at hundreds of miles per hour, with no allowance for removing a misbehaving or dangerous animal from the cabin once an aircraft is in flight. The airlines’ proposal would eliminate this anomaly by bringing the DOT’s air travel rules into line with the DOJ’s generally applicable rules.
What exactly are the airlines proposing? Airlines have requested that the DOT eliminate the requirement to accommodate in cabin untrained ESAs of any species. Airlines, however, are not proposing any reduction in the scope of accommodations they must provide to individuals with a disability who travel with a trained service dog — animals that are covered by the DOJ’s regulations.
These include seeing-eye dogs, and other dogs that support veterans and others suffering from post-traumatic stress disorder. In addition, airlines are proposing to eliminate advance documentation requirements that currently apply to such psychiatric service animals, including the need to provide a letter from a licensed mental health professional and documentation relating to an animal’s vaccinations, health, training and behavior.
The airlines’ proposal is consistent with the position of numerous disability advocacy groups, which argue that abuse of the existing DOT rules requiring airlines to accommodate ESAs undermines access to air travel for persons with disabilities who are accompanied by trained service animals.
The traveling public, increasingly aware of widespread abuse of the DOT’s rules, has become cynical about their fellow travelers’ claimed need to travel in cabin with service animals. This skepticism is creating a more hostile air travel environment for persons with disabilities, which is highly unfair because these individuals rely on their trained service animal for access to public spaces.
In a recent incident, a passenger punched a deaf, pregnant passenger and her service dog. The airlines, meanwhile, are in the unenviable position of having to accommodate passengers whom they strongly suspect of abusing the DOT’s excessively permissive regulations, while lacking authority from the DOT to effectively scrutinize these dubious disability claims. And airline personnel must deal with the consequences when these animals misbehave.
The airlines have offered a common-sense solution to the ESA problem. The DOT’s rulemaking process, however, moves at a snail’s pace. Meanwhile, the fraud, abuse and threats to the health and safety of passengers and airline personnel persist, and are only likely to worsen while all parties await a solution that must come from the DOT. We urge the DOT to expedite its rulemaking process to resolve the rapidly growing ESA problem.