Thursday, November 3, 2011

Service Dogs and the Subtle Sociology of Prejudice in the Twenty-First Century

At its best, Mad Men is a study of corporate sociology--better, anthropology--of the 1960s. Fans of the series have their favorite episodes. Mine is the tractor episode (Season 3, episode 6), in which the new Chief Operating Officer of Sterling Cooper nearly loses his life when a secretary, driving a tractor around the office during a raucous celebration—the John Deere account has just been landed—runs over the COO’s foot, cutting it off. One of the first assessments of upper management, before the bleeding is even stopped, is that the COO will have to be replaced. He cannot play golf with only one foot. In pre-ADA America, the COO could not even think of suing based on dismissal or demotion for his sudden disability. He would have to accept that the inability to play golf would preclude his being in the inner circle of an advertising agency of that era.

We have come a long way from a time when even the object of prejudice could accept such discrimination without complaint. Prejudice has not disappeared, but those who do not want to serve or work with the disabled generally disguise their reasons much better than was the case thirty or twenty or even ten years ago. Things have gotten so subtle that it may be difficult to establish that prejudice was involved at all, and indeed it may not be involved because bad things sometimes happen to good people for nondiscriminatory reasons.

Two decisions issued in October 2011 provide something of a snapshot of the present state of legal disputes regarding exclusion of service animals from retail businesses that serve food.

Fast Food Franchise

In April 2010, Alexander Johnson attempted to enter a Burger King franchise owned by B5596, LLC, but a sales clerk prevented Johnson from bringing his hearing dog inside the restaurant. A friend had to buy food and bring it outside to Johnson.

Johnson sued for disability discrimination under California’s anti-discrimination law, known as the Unruh Act, seeking damages of $4,000, along with attorney’s fees and costs. The trial court found the franchise in violation of a separate law, usually called the Disabled Persons Act, which provides for statutory damages of $1,000. Johnson appealed, arguing that he was entitled to the statutory damages of $4,000 allowed under the Unruh Act.

An appellate court in California held, in an opinion that was not officially published, that Johnson was only entitled to damages of $1,000. The appellate court explained that the Unruh Act was amended in 1992 to provide that a “violation of the right of any individual under the Americans with Disabilities Act of 1990” constitutes a violation of the Unruh Act. The Americans with Disabilities Act restricts private rights of action to injunctive relief, but the state law allows recovery of damages for the kind of discrimination contemplated by the ADA.

The court concluded, however, that the specific mention of service dogs in California’s Disabled Persons Act meant that this was where the plaintiff had to look for compensation for the defendant’s discrimination. The court noted that a provision under the Disabled Persons Act provides that a defendant, such as the franchise here, could not be held liable under both that Act and the Unruh Act. The court also affirmed the trial court’s finding that Johnson could not choose to sue under the Act that would give him the larger award. The more specific provision controlled over the more general.

The court awarded costs on the appeal to the respondent, the franchise, though apparently not attorney’s fees. Johnson v. B5596, LLC, 2011 WL 5086234 (Cal. Ct. App. 2011)

Oregon Dairy Farm and Store
On December 1, 2009, Rachel Brodle entered a Dari-Mart Store in Eugene, Oregon, with her service dogs. The store clerk asked her what kind of service dogs they were. Plaintiff, according to the defense, became “distressed and started yelling.” Brodle left the store and returned with a friend, Lorri Cochrane. Brodle asserted her right to enter the Dari-Mart with her service dogs. Again according to the defense, Brodle was “incredibly rude and invasive” towards another employee of the store.

The store manager instructed all her employees that if Brodle returned again, she should be directed to speak to Alexander before being allowed to shop. The manager also contacted the Deri-Mart’s human resources department and requested that the surveillance video of the events be reviewed.

Brodle returned five days later with her dogs. A clerk informed her she had to speak to the manager before she would be allowed to shop. Brodle refused and left the store, saying she would contact her lawyer.

Later on December 6, Cochrane also returned to the store and expressed her displeasure at what she perceived to be the store’s mistreatment of Brodle. Cochrane had poured herself a soda and left without paying for it. Cochrane also mentioned contacting an attorney on Brodle’s behalf.

On December 7, the store manager informed Dari-Mart’s Human Resources Manager that she believed Brodle was “looking to sue us.” The HR Manager asked the company’s Safety Director to review the video surveillance of December 6. The Safety Director took out snapshots of Cochrane taking a soda without paying for it, apparently thinking there should be a shoplifting prosecution. The video of December 6 was automatically erased about 30 days after the incident.

Brodle brought suit, then petitioned for an order specifying that she was refused access to the store because she was accompanied by service dogs, as well as an order imposing an adverse-inference instruction that would instruct the jury that it could infer that spoliated video surveillance would have been unfavorable to the store and its employees.

Federal courts may issue sanctions against a party for destroying evidence, but a court considering such sanctions must take into account a number of factors before imposing them. The federal district court for the District of Oregon held that the failure to preserve the video was not the result of willfulness, bad faith, or interference with the rightful decision of the case in that the store had admitted that Brodle was asked to leave on December 6.

The court also declined to exclude testimony of the store employees regarding what happened on December 6 because Brodle “failed to show that she is unduly prejudiced by the destruction of the December 6 video and any testimony by defendants and their employees regarding the events of that day.” Thus, the store employees could testify.

As to the adverse inference instruction that Brodle sought for the jury, the court concluded that Brodle had “failed to show that the video was destroyed with a culpable state of mind.” The request for such an instruction was also denied.

Dari-Mart moved for summary judgment, arguing that Brodle had failed to establish a basis for liability. This motion was granted, ending the case, absent possible reconsideration on appeal.

As with a recent blog regarding access of a person with a service dog to a courthouse, the statement of facts given in the court’s opinion does not tell us what really happened. Clearly the court was inclined to accept that Brodle reacted badly to a request for information from a store employee. The store and its employees have a right to verify that a dog—in this case dogs—is a service animal. There are well-known limits on what may be asked and what may not be asked. Brodle’s complaint stated that she suffered from Addison’s Disease (primary adrenocortical insufficiency). The store could not ask about Brodle’s condition, and apparently did not do so. The store could ask about what functions the service dog performed, which is what apparently was asked, though the opinion never states what functions the dogs perform.

Merely knowing what was asked and what was not asked does not always describe what it was like to be in the store when the events that became the subject of this litigation took place. The court had to make a decision, and did so. Although the facts, as presented in the opinion, portray Brodle as overly sensitive to the store employee’s inquiries, we cannot be sure that some level of prejudice might have been involved.

The store made its case. Brodle did not. Judges are not agents of individuals with disabilities, nor are they agents of businesses. They listen to stories and attempt to understand what happened. As I said in another blog several years ago, enforcing one’s rights sometimes involves thinking strategically, not aggressively. That does not seem to have been done here. Brodle v. Lochmead Farms, Inc., 2011 WL 4913657 (D.Or. 2011)

What Was Not Said by the Courts

When I wrote Service and Therapy Dogs in American Society, I was surprised at how many national and multinational corporations had failed to assure that employees be aware of the disability rights of customers, including customers using service animals. It seemed to me that they should be learning from each other’s mistakes, but this has often not been the case. The lucky ones are those that find a way to settle before an incident becomes public.

Although Burger King is a franchise system, I have to believe that Burger King corporate headquarters is anxious to avoid the bad publicity attendant on a franchise employee’s refusal to admit a customer with a service animal. Was this an employee more interested in a cute colleague sitting next to him at the disability seminar than he was in the speaker? The franchise may have had to pay a small amount this time, but the next time an employee crosses the line with a customer using a service animal, resolving the issue may not come so cheap. Burger King corporate headquarters would be well advised to send a memo to franchisees warning them about the risks of failing to educate employees on the need to allow people with service animals into the restaurants.

Dari-Mart should not become complacent about the fact that it got a service dog user’s case dismissed. Why did a security official allow a videotape to be erased? Why did that official think the only thing the tape was good for was in making a shoplifting case against someone who was trying to help an individual with a disability? Other employees seem to have made it clear that they wanted the video footage reviewed to establish that their response to the woman with the service dog was not discriminatory or threatening. The security officer could not think beyond the boundary of his responsibility of protecting the store from theft. Dari-Mart should be concerned that another court, or the same court with a few variations in facts, might have favored the plaintiff in such a situation. It might even be wise to shift to a technology that saves security footage indefinitely. While a month may be adequate for most security and police purposes, an incident involving discrimination would quite likely not come to the store's attention in such a short time frame.


A corporation with an employee that doesn’t know about the rights of persons with disabilities, including the rights of persons using service dogs, has a problem employee. An employee who doesn’t understand that video surveillance can be used for more than preventing shoplifting may also be a problem employee. The Dari-Mart case shows that employee education should be designed to deal with the many collateral issues that may arise in a potential discrimination situation.

Corporate counsel reviewing incidents that might lead to accusations of discrimination should not rest on the easy victories where company employees were more in the right than in the wrong. These victories may come from incidents that contain the germs of more serious issues, ones that will not be easily won, or might only be won at a tremendous public relations cost.

People with disabilities, including users of service animals, are more aware of their rights than ever. An employee who loses his foot at an office party would not in the twenty-first century accept a demotion because of a sudden limitation to his golf game. Situations have become more subtle, making proof of discrimination harder to establish. All in all this is probably progress of the sort Oliver Wendell Holmes wrote about and which has for decades decorated a wall of Boalt Hall at Berkeley.

1 comment:

  1. My name is Patty Dobbs Gross and I serve as Executive Director of North Star Foundation, a nonprofit organization that creates assistance dog partnerships between children who face social, emotional and educational challenges and well bred, socialized and trained North Star dogs.

    I was very glad to read this blog, as I believe the time is right for the "differently abled" to realize the discrimination they face when they endure public access challenges. At this point in time, to not understand a child with autism's right to be comfortable in public, or fail to recognize that a specifically trained assistance dog can provide this child much needed security and comfort (along with help in communicating to others in public) is no longer acceptable. I believe the fact that the children's struggle is combined with the public access issues the teams face just gives us more benevolent company along the way on our journey toward equal rights for children with social, emotional or educational challenges...

    For many years over our last decade of incorporation I've counseled North Star families to "catch more flies with honey than vinegar" in terms of the public access challenges they face as I considered autism assistance dogs a pioneering field and I wanted to allow corporations and businesses a comfortable trip up the learning curve; education being an important part of our mission, I felt this was only fair.

    But we have now reached our second decade of incorporation as a nonprofit and I think the time is right to push for greater understanding in public, not just for autism assistance dogs, but for the child on the other end of the leash.

    Thanks, John, for pointing us in the right legal direction to begin to realize these rights the ADA granted us well over a decade ago...

    Kind regards,

    Patty Dobbs Gross
    Executive Director
    North Star Foundation
    We help children find their way.