by Mary Ellen Gabias
From the Editor: The Model White Cane Law was drafted by Jacobus tenBroek and set in motion the adoption of state statutes throughout the nation to enshrine in law the right of blind people to public accommodations. Every state in the union has some form of this model on the books, and the Americans with Disabilities Act also seems quite clear on the subject of the right of blind people to be accompanied by guide dogs.
Even so, recently we have seen an alarming increase in the number of blind people who are being refused transportation because they are accompanied by a guide dog. Our friends to the north in Canada find themselves in a position of having to fight a recent ruling in British Columbia in which a civil rights tribunal has rejected a claim of discrimination, even though the facts and the case are undisputed, and the law seems unequivocal. We reprint here a request from Mary Ellen Gabias, the president of the Canadian Federation of the Blind, as the organization seeks to raise money to fight this most disturbing ruling. I will include a postscript after her remarks to suggest differences and precedents that might make US law a bit stronger, but these observations should not cause us to be apathetic about the rights of guide owner teams everywhere or to ignore the increasing problems that confront us as users of guide dogs. Here is what Mary Ellen says:
Without your immediate help, three quarters of a century’s work establishing the access rights of guide dog teams may be casually swept away in British Columbia!
Discrimination by the taxi industry is just fine, a minor inconvenience, no more, according to Jacqueline Beltgens of the British Columbia Human Rights Tribunal.
We need your help to raise fifteen thousand dollars to fight for legal redress of a tribunal decision that gives more credence to hearsay about a taxi driver’s unproven dog allergy than to the rights of a person with a guide dog.
Please go to <https://fundrazr.com/campaigns/b13jT2> to make your cry for justice heard. As you read Graeme McCreath’s story, consider the implications for guide dog teams everywhere.
Graeme McCreath just wanted to go out for a casual evening with a few friends on July 15, 2014. He never intended to walk into a humiliating bureaucratic nightmare. The story is all too familiar to anybody who cares about guide dogs and human rights. A friend phoned a taxi. When it arrived, the driver, Bruce MacGregor, announced, “I can’t take the dog. I’ll get you another cab.”
The refusal of service was a public humiliation. It was also a direct violation of British Columbia’s Guide Animal Act. British Columbia has two laws that are supposed to protect people who travel with guide dogs. The Guide Animal Act says: “A person with a disability accompanied by a guide animal has the same rights, privileges, and obligations as a person not accompanied by an animal.” The British Columbia Human Rights Act also prohibits discrimination on the basis of disability.
The law seemed extremely clear. Graeme McCreath sought justice from the Human Rights Tribunal. After a year of filings and discussions, the matter finally went to hearing on July 14, 2015. Graeme McCreath, Bruce MacGregor, and Sean Convy (the manager of Victoria Taxi) had nearly a year, more than ample opportunity to produce evidence. The only documentation the taxi company produced was a vaguely worded slip from a walk-in clinic that didn’t mention allergies and an internally produced document noting that MacGregor had been given an “exception.” Both were dated months after the 2014 incident.
Graeme McCreath and three witnesses to the event testified at the hearing. Bruce MacGregor didn’t even bother to attend. Sean Convy, the manager of Victoria Taxi, represented his company, since the human rights complaint named Victoria Taxi because the company’s policies allow MacGregor and other drivers to refuse service.
The facts are undisputed. Graeme McCreath is blind and was accompanied by his certified guide dog. Bruce MacGregor gave no reason for refusing to transport Graeme when the event occurred, but Sean Convy later claimed that MacGregor has both a dog phobia and a dog allergy. Since MacGregor wasn’t there, he never verified Convy’s claim.
This is how the tribunal described Graeme McCreath’s assertion that he had suffered discrimination: “ Mr. McCreath has established a prima facie case of discrimination. He has a physical disability, he suffered an adverse impact when he was denied a ride by the Taxi Driver, and he was denied the ride because he was accompanied by his guide dog.” Yet the tribunal dismissed Graeme McCreath’s case! The tribunal ruled that denial of service by one driver was a minor inconvenience since another cab arrived within a few minutes. One wonders how the tribunal would have responded to Rosa Parks. After all, it is also only slightly more inconvenient to walk a few extra steps to the back of the bus.
Since MacGregor didn’t bother to appear at the hearing, he never had to explain his actions or answer a single question about his reason for refusing to transport Graeme McCreath. Nevertheless, the tribunal ruled that MacGregor had a “disability” that entitled him to an “accommodation” from the company. Beltgens referred repeatedly to MacGregor’s “disability” due to an allergy based on hearsay testimony from Sean Convy. Without documentation, Beltgens voided MacGregor’s responsibility to obey the law. No proof was required; a claim with no substantiation of the severity of the alleged allergy was enough.
We’ve all met people who say they have a “vision impairment” when what they mean is that they wear reading glasses. Their “impairment” exists, but it doesn’t constitute a disability as the term is generally understood. Anyone who wants to establish blindness medically must be seen by an ophthalmologist, a physician with the highest available credential for treating eye conditions. The tests are exacting; all available corrective measures must be undertaken before certification of blindness can be made.
The word “allergy” also has variable definitions, ranging from mild sniffles to anaphylactic shock. Clearly anaphylactic shock is disabling; sneezes are not. Yet the tribunal did not require that MacGregor’s claim of a disabling allergy be documented by a physician specializing in the diagnosis and treatment of allergic conditions. She specifically and categorically ruled out any finding that anyone claiming an allergy exemption from transporting guide dogs should undergo treatment, calling the suggestion “untenable.”
Ms. Beltgens writes: “The Tribunal has determined that an allergic reaction to animals can constitute a physical disability under the Code.” She behaves as if it not only can, but that merely asserting the presence of an allergy is sufficient to claim disability status, even though the presence and severity of the allergy is unproven.
Graeme McCreath’s case uncovered disturbing evidence of systemic discriminatory practices on the part of Victoria Taxi. Beltgens writes: “He (Mr. Convy, the manager of Victoria Taxi) says that, in addition to taxi drivers, the owners of a particular taxi are also entitled to place an exception to having animals in a car. He says that five of the owners of taxicabs have also placed exceptions on their cars preventing the transport of animals.” Refusing to take pet dogs is an owner’s right. However, the tribunal never raised any issue concerning the legality of applying a no-animals policy to guide dogs, even though failing to make that distinction is clearly a discriminatory practice.
Unless we challenge this decision, the British Columbia Human Rights Tribunal has written a manual on how to discriminate and get away with it! You drive a taxi and don’t want to vacuum dog hair? No problem. Just file an exemption so that no dogs can ride in your cab. If you want to be really sure that you can get away with denying service, go to a walk-in clinic and ask the doctor on duty to give you a note that says you have “medical reasons” for not transporting dogs.
With only a little creativity, Ms. Beltgens’ reasoning can easily be extended to include restaurants or other businesses. “I can’t serve you because I’m allergic. It’s only slightly inconvenient to go next door.”
We do not want to deny the legitimate claims of taxi drivers and other workers who genuinely suffer with disabling allergies. They should be accommodated by their employers. We know what genuine disability means, and we’re passionate about protecting all people with disabilities. That is why we are passionate about not wanting disability to be trivialized by those who frivolously and fraudulently seek to claim disability protection.
We realize this story seems nearly impossible. Human Rights Tribunals were set up specifically to put an end to unfair treatment on the basis of characteristics like disability. With that mandate, how could a tribunal rule the way this tribunal ruled? If you doubt this decision was based on hearsay and that the facts were massaged to permit a preordained conclusion in favor of the business interests of Victoria Taxi, we invite you to read Ms. Beltgens’ ruling, with all its tortured reasoning, on the BC Human Rights Tribunal website at <http://www.bchrt.bc.ca/decisions/ 2015/oct.htm>.
We urge you to go to <https://fundrazr.com/campaigns/b13jT2>, and contribute what you can. Graeme McCreath was victimized twice—once when he was refused service, and again in an even more profound manner when a tribunal, set up to protect his rights, actively engaged in denying them. If people who care about guide dogs and human rights don’t stand together, British Columbia may lead the way in erosion of our rights. If we stand alone here, we may fall separately all across North America.
From the Editor: This is what the president of the Canadian Federation of the Blind has to say about laws in British Columbia and the way they are being enforced. Marion Gwizdala, president of the National Federation of the Blind’s National Association of Guide Dog Users (NAGDU) makes these comments about enforcement issues in the United States:
Taxicabs are especially problematic, rating among the top five industries with which guide dog users have issues. NAGDU has written a grant request to tackle this problem and should have an answer within the next two weeks. We have also been contacted by the DOJ seeking guide dog users to do an enforcement program somewhere in the United States.
In the United States most taxicab companies use independent contractors who lease taxicabs from the company. These companies mistakenly believe that they are not responsible for the denials because of this relationship; however, this is not true, and the courts have stated so on several occasions. The DOJ and most state laws specifically state that allergies and the fear of dogs are generally not reasons to deny access to a disabled person accompanied by a service dog, since allergies to dog dander typically do not rise to the level of a disability, and even the presence of dander on one’s clothing could be sufficient to trigger an allergic reaction such as watery eyes and a runny nose. Such reactions are not considered disabling conditions by the DOJ.
According to US law, individuals with disabilities are considered a protected class and cannot be denied access as a result of a disability. The only exception might be if there were a dispute between two individuals protected by the law, i.e., both have a disability. If, for instance, a taxicab driver were to have the rare condition of an allergy to dog dander that rises to the level of a disability (fewer than .05 of 1 percent of the US population have such an allergy), Title I of the ADA would require the company to make a reasonable accommodation for the disabling condition, provided doing so would not pose a direct threat or cause and undue burden. The bottom line is that the claim of an allergy to dog dander by a taxicab driver does not excuse the driver from carrying an individual accompanied by a service dog.
With disturbing frequency we are encountering drivers of taxicabs and other forms of public accommodation who claim that it violates their religious beliefs to be around dogs. There seems to be little ambiguity in the law, which clearly differentiates between one’s right to maintain a religious belief and her right to act upon it.
Here are some relevant quotations from the United States Supreme Court differentiating between one’s beliefs and actions:
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”
In another case the Supreme Court said: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”
“Laws, we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices...Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”