Between Scylla and Charybdis: the reasonable accommodation dilemma
In Greek mythology, two sea monsters—Scylla and Charybdis—lived on opposite sides of the Strait of Messina between Italy and Sicily. The monsters were located in such proximity to each other that they presented an unavoidable threat to sailors traversing the narrow strait. In Homer’s Odyssey, Odysseus and his crew attempted to evade the creatures as they passed through the strait. Much like the proverbial “between a rock and a hard place,” finding yourself “between Scylla and Charybdis” refers to the necessity of picking between two conflicting choices when neither will have a positive outcome. Having to decide how to respond to competing reasonable accommodations under the Americans with Disabilities Act (ADA) or the related Rehabilitation Act can feel exactly like being caught between Scylla and Charybdis.
The ADA requires certain entities, including employers, to reasonably accommodate individuals with disabilities when possible. How you deal with the dilemma of choosing between competing requests for accommodation depends on how the courts are treating such conflicts. Recently, an Ohio federal court addressed a reasonable accommodation conflict at a public university in the state. Although its opinion isn’t binding on Utah and doesn’t directly apply to employers, it is nevertheless instructive, providing insight into how courts are thinking about conflicting ADA/Rehabilitation Act accommodation issues.
Breakdown of sisterhood
Madeline Entine is a second-year undergraduate at The Ohio State University who has been diagnosed with depression, anxiety, obsessive-compulsive disorder, and posttraumatic stress disorder. In addition, she suffers from debilitating panic attacks. At times, she has been hospitalized and received medical and psychiatric treatment for her panic attacks. Just before school started, she was suicidal and committed herself to Harding Hospital at Ohio State. She is recognized as having a disability under the ADA.
Entine has a service dog that has been trained to disrupt her panic attacks by jumping on her chest and licking her face. The tactile sensations restore her ability to breathe and move during a medical crisis. The dog also makes Entine feel less alone.
After her diagnosis, Entine let Ohio State know about her disability. The university accommodated her by allowing the service dog to accompany her into areas and buildings on campus where animals are normally prohibited.
As a second-year student, Entine is required by Ohio State to live in campus housing. However, the university makes an exception for students living in a fraternity or sorority house maintained exclusively for members. Entine is the incoming vice president of the Zeta Alpha chapter of the Chi Omega sorority, and she was granted the right to live with her dog in the Chi Omega sorority house on campus. Although the house is privately owned, Ohio State requires it to follow university rules and policies, including those related to disability discrimination and compliance.
Entine also notified the owner of the Chi Omega house about her service dog. The owner modified the house’s no-animals policy, permitting the service dog to live with Entine in the sorority house. She and her dog began residing there on August 28, 2017.
Ohio State receives federal financial assistance for purposes of Section 504 of the Rehabilitation Act. Further, it is an instrumentality of the state of Ohio, which makes it a public entity subject to Title II of the ADA. Scott Lissner, Ohio State’s ADA coordinator, was notified about the service dog’s presence in the sorority house.
Lissner agreed with the decision to allow the dog to live in the Chi Omega house with Entine, but he suggested that there should be boundaries and limits on the spaces the animal would be permitted to enter. Thus, he presented a plan to Entine that limited the dog to her bedroom and the formal living room. The dog was not to be allowed on the living room furniture.
Another resident of the Chi Omega house, Carly Goldman, suffers from Crohn’s disease. Goldman claims that she is severely allergic to Entine’s dog. Specifically, she claims that the dog exacerbates her Crohn’s disease, which causes her significant pain and distress. A flare-up leads to painful bloating and either frequent bowel movements, which cause her to miss class and feel isolated, or bowel movements only once every three to four weeks. In addition, she is in therapy for anxiety due to her inability to predict when her symptoms will flare up. On September 10, Goldman objected to Entine’s dog’s presence in the house because of her allergies.
In addition to Crohn’s Disease, Goldman suffers from allergies and asthma. One of the things she is allergic to is dogs. Depending on the severity of her reaction, she experiences a range of symptoms, from itchy eyes and a stuffy nose to rashes and anaphylactic shock (for which she carries an EpiPen). Exposure to dogs has caused her to have swollen eyes, a closed throat, a clogged nasal passageway, and a rash.
Goldman notified Ohio State about her Crohn’s disease and requested accommodations. Various accommodations were offered, including allowing her to leave class and exams quickly to go to the restroom or return home. She was also given a parking pass that allows her to park close to the buildings in which she attends classes.
When Goldman moved into the Chi Omega house, she began to experience red and itchy eyes and congestion. In addition, she felt that her throat and nasal passages became constricted at night. She also claimed that the anxiety caused by her increased allergy symptoms aggravated her Crohn’s symptoms. She informed her house “mom,” the property owner, and others about her dog allergy. The owner of the house referred Goldman’s complaint to Lissner.
Lissner conducted an investigation into Goldman’s complaint for the university. Both Entine and Goldman were asked to submit information about their respective medical conditions to his office, and they complied. Lissner also met with them to discuss the situation.
Entine agreed to compromise by taking her dog only into certain areas of the house and to eat in isolation outside the dining area. Goldman apparently wasn’t satisfied with that solution. Indeed, she told Entine that one of them would need to leave the sorority house, and it wasn’t going to be her.
However, that was inconsistent with what Goldman told Lissner. According to him, she was willing to compromise as long as she would have minimal to no exposure to Entine’s dog. Ultimately, Goldman objected to the dog’s presence in the home again when she felt that Entine wasn’t complying with the restrictions placed on the animal.
On October 4, Lissner issued a written determination in response to Goldman’s complaint. He concluded that both Entine and Goldman have disabilities and that their accommodation needs are “at odds.” Unable to reconcile the accommodations, he determined that the resolution would be based on who secured her lease first. Lissner decided the person who secured her lease second would have to choose to move out of the sorority house or continue to live in the house without an accommodation.
Because Goldman secured her lease first, Entine had to choose to stay without an accommodation or move out. Ohio State notified her of the decision on October 24. She was required to comply no later than October 30.
Entine seeks an injunction
Entine filed a lawsuit in federal district court, claiming violations of the ADA and the corresponding Ohio statute, the Fair Housing Act, and Section 504 of the Rehabilitation Act. In connection with her lawsuit, she asked for a preliminary injunction that would prevent the implementation of Lissner’s decision until the lawsuit had concluded. A preliminary injunction is designed to preserve the status quo until a trial is held on the merits. The court granted Entine’s request for an injunction.
First and foremost, the court concluded that Entine was going to prevail on her claims. The court concluded that her dog is a service dog because it has been specially trained to perform tasks to assist her with her disabilities, such as jumping on her torso during a panic attack. The court recognized that Ohio State is generally required to permit the use of service animals unless the animal’s presence would fundamentally alter the nature of the university’s services, programs, or activities; the animal would pose a direct threat; or the animal is out of control or not housebroken. Under the circumstances, the court concluded that Lissner did not perform the correct inquiry under the ADA.
The court also questioned whether Goldman properly sought a reasonable accommodation that would trigger an inquiry. She merely objected to the modification of Chi Omega’s no-animal policy; she did not actually request an accommodation. And if she did request an accommodation, Ohio State should have engaged in the interactive process to address the issue.
Yet even if Goldman was deemed to have properly requested an accommodation, the court felt that Entine would prevail on her claims because Lissner didn’t perform a “direct threat” analysis as required by the law. The court explained that Lissner was required to conduct an assessment of Goldman’s disability and make a reasonable judgment, based on all the evidence unearthed during his investigation, about whether the dog’s presence in the house was such a threat to her health that her disability overrode the ADA’s default position to allow service animals. Lissner admits that he didn’t perform such an analysis.
Although Lissner did review some medical evidence, the court found it difficult to say that he made a reasonable judgment because none of the evidence showed that Entine’s dog caused Goldman’s increased Crohn’s symptoms. Indeed, Goldman couldn’t tie her Crohn’s “flare-ups” to the dog. Further, the medical evidence showed that other allergens, including cockroaches and dust mites, were present in her system. Thus, the court concluded there was no proof that the dog aggravated her Crohn’s disease. Moreover, Lissner didn’t explore any options other than removing the dog from the Chi Omega house.
The court concluded that because Lissner didn’t perform the proper “direct threat” analysis required by the ADA, Entine was likely to succeed on the merits of her case. Finding the other requirements necessary for an injunction were satisfied, the court granted her request. Accordingly, Lissner and Ohio State are restrained from removing Entine or her dog from the Chi Omega sorority house or taking any other adverse action against her if she remains in the house. Madeline Entine v. Scott Lissner, Case No. 2:17-cv-946 (S.D. Ohio, Nov. 17, 2017).
Although this isn’t an employment case, the court’s ruling sheds light on how employers should address certain conflicting accommodation requests. As the court noted, service animals should generally be accommodated. The only time a competing accommodation should override that presumption is if evidence gathered during an investigation leads to a conclusion that the service animal poses a direct threat to another person. Medical evidence will likely need to be reviewed to assess whether the animal is causing or exacerbating someone else’s condition or disability to such an extent that the animal is a threat.
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