There is an increase in the number of service and comfort or emotional support animals appearing with their companions at restaurants, shops and airplanes. There appears to be a line between the public’s acceptance of service animals which necessarily assist people navigate public obstacles (a blind person utilizing a dog) or a Veteran with post traumatic stress. On the other hand, the public is less tolerant of accepting comfort or emotional support animals in restaurants for example when there are reasonable questions of food safety when Fluffy the cat joins his owner at the buffet line.
For tribal employers, are there rules which impact policies which draw lines between respect for legitimate uses of a service animal as compared to the patron insisting that her comfort cat brings her luck at the blackjack table? The answer to this question is not clear.
The federal government’s American with Disabilities Act (ADA) does not apply to tribal employers. 42 U.S.C. Section 12111(5)(B)(i). Accordingly, the civil right protected by the ADA prohibiting employers from using disability in making decisions like hiring and firing, does not extend to tribal employers. Because of that reality, tribal employers promulgate laws and policies prohibiting the use of disability and other protected classes as consideration in making employment decisions. Same result with different sovereigns protecting the same moral choice.
But a declaration that the ADA does not apply to the tribe’s employment practices may not completely answer whether the ADA applies to the tribe’s policy addressing service animals. The ADA is divided into separate titles and each address different circumstances. ADA’s Title I addresses employment decisions (see above), Title II addresses programs, services and activities run by state and local governments and Title III requires public places to be accessible to individuals with disabilities. For example, the law requires, and common sense reinforces, the idea that public buildings be accessible to people in wheel chairs. For those reasons, tribal casinos reduce to zero the height of a concrete curb outside the entrance to the casino. In addition to making a public space wheel chair accessible, Title III of the ADA extends protections to disabled persons utilizing service animals. The question therefore is whether Title III of the ADA impacts tribes.
Unlike Title I of the ADA which specifically excludes applicability to tribal employers, Title III of the ADA is silent on applicability to tribes, and in that silence, courts have spoken confusing rules which are difficult to apply, and vary from circuit to circuit. In Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999), a federal court declared that Title III of the ADA applied to a tribally owned restaurant and that restaurant did not adequately accommodate disabled persons. A declaration that Title III of the ADA applies to a tribal entity, however, does not prohibit the tribe from raising the defense of immunity if the party presenting the claim is a private party. On the other hand, the sovereign immunity defense likely does not offer the tribe protection if the United States presents the same claim. Title III contemplates such actions by the United States Attorney General who may ask a court for an injunction requiring compliance. 42 U.S.C. Section 12188(b)(1)(B).
Whether the federal disability law applies to the tribe’s public spaces, and even if it applies, whether tribes can be held accountable (immunity), are open questions. In the absence of specific tribal laws and policies addressing service animals, can tribal employers look to federal law as a guide in crafting tribal rules? And if tribal employers look to federal rules, are there some common sense policies articulated by those rules?
The answer is yes and yes.
First, a service animal is limited to a dog or miniature horse. 28 C.F.R. Section 36.104. Therefore, realistically a service animal is a dog, and not a cat, snake or parakeet.
Second, a service animal is trained to perform tasks for a person with a disability. 28 C.F.R. Section 36.302(c)(9). These are dogs which assist a blind person with navigation and alert a deaf person to the sound of a passing vehicle. These dogs provide non-violent protection, assist persons during a seizure, retrieve medicine and provide assistance with balance and stability among other examples.
Third, emotional support or companion dogs do not qualify under the federal rules. 28 U.S.C. Section 36.104.
Fourth, what are public areas? The definition of a public area is broad and if this law applies or influences the tribe’s rules, public areas will include the gaming floor, restaurants, bars, hotel and conference center. 28 C.F.R. Section 36.201(b).
Fifth, when a person enters the tribal casino, what questions may be asked? There are two questions allowed: (1) Is this a service animal that is required because of a disability? (2) What work or tasks has the animal been trained to perform? The inquiry should not include a request for proof of training, disability or certification. 28 C.F.R. Section 36.302(c)(6). If the need for a service animal is obvious, no inquiry should be made.
Sixth, when may a service animal be denied access to public spaces? A service animal may be denied when its handler is not controlling the animal, the animal is not housebroken or the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level. 28 C.F.R. Section 36.302(c)(2), (4), (9).
Seventh, states have promulgated rules which address service animals, and those rules likely do not apply unless they are incorporated into a gaming compact or other agreement.
Eighth, what are the risks of noncompliance? If these rules apply to tribal employers, unless the tribe has waived its immunity protection, private persons and entities will struggle to enforce the rules. On the other hand, if the federal government pursues an enforcement action, courts may award injunctive relief, money damages, penalties and attorney’s fees. 28 C.F.R. Section 504 and 505.
For those tribal employees working in the tribe’s housing department impacted by the receipt of federal housing funds, there are rules in the federal government’s Fair Housing Act located at Title 42 U.S.C. Section 3601 et seq and the corresponding regulations at 24 C.F.R. Section 100 et seq. Those rules utilize different terminology by referring to service animals as assistance animals. If these rules apply to tribes, assistance animals must be allowed in all areas of the premises where persons are normally allowed to go, unless doing so would pose an undue financial or administrative burden or would fundamentally alter the nature of the housing provider’s services.
Recommendations: Draft policies and procedures which are aligned with the tribe’s values. If relevant federal rules support the tribe’s values consider their impact on the tribe’s policy. Consider evaluating the risk of noncompliance with federal rules which may, or may not, apply.
2019 Public Sessions
Discrimination, Harassment & Bullying Train the Trainer
Best Western Plus MOA, Bloomington, MN
This training will help you be more effective in addressing discrimination, harassment and bullying in the tribal workplace by analyzing three critical questions: (1) Is your policy effective; (2) Is your training meaningful; (3) Are you serious about enforcing the policy in a fair manner? Because the training materials include a practical how to approach in responding to each question, you will emerge from this session with new skills. Moreover, the training material includes a presentation and other resources you will use at your tribe to deliver similar training.
Tribal Employment Law & Standards for Tribal Leaders, Executives, Administrators & Directors
Best Western Plus MOA, Bloomington, MN
This session addresses the impact of self-determination, sovereignty, immunity, jurisdiction, federal funds, federal and state law, tradition and custom on tribal employment practices. Moreover, the session addresses the important questions. Do tribal employers have to follow state employment laws? What about federal employment laws? How does preference really work? How does TERO impact preference? Can tribal employers define the terms and conditions of employment and how is that done? What is at-will employment? What is for-cause employment? Can tribal employees say impolite things on social media and be held accountable? What are the fundamentals of those federal laws which tribes most likely follow? How do employee references work? What is the federal background law? What are harassment, discrimination and protected class and how are they related?
Standard Operating Procedures Workshop
August 1 & 2
Pala Casino Spa & Resort, Pala, CA
This workshop on the practical development of department standard operating procedures is important for all directors and managers including Human Resources. Tribal Administrators will also benefit from this class. The first phase addresses and defines the range of employer documents and provides a practical approach in writing SOPs. The second phase is a workshop wherein the participants engage in the SOP drafting process. Make sure your department directors and managers attend this training workshop.
Drafting Employment Codes & Handbooks
October 10 & 11
Gila River’s Vee Quiva Hotel & Casino, Laveen, AZ
This session addresses the best practices for creating a system of laws, policies and procedures which best serve the tribal employer and employees. The session provides respectful suggestions for defining the terms and conditions of employment through an employment code and employee handbook. Sample language for a tribal employment code and comprehensive policies are included in the materials.
Each class has a detailed agenda. Please let us know if you are interested in attending.
Law Office of Richard G. McGee, LLC
P.O. Box 47068, Plymouth, Minnesota 55447