40
the final rule specifies that airlines are permitted to make an individualized assessment based on
reasonable judgement and objective evidence to determine if a service animal poses a direct
threat to the health or safety of others. The Department believes that this standard, which is
based on objective evidence of the dog’s behavior, rather than generalized assumptions about
how a breed or type of dog would be expected to behave, provides airlines with the best means
of determining whether the particular animal poses a direct threat to the health and safety of
others.
Furthermore, prohibiting airlines from banning particular breeds of dogs, including pit
bull-type dogs, on aircraft is consistent with DOJ guidance under the ADA. We note that DOJ
also rejects an outright ban on service animals because of their breed in implementing its
regulations under the ADA. DOJ has advised municipalities that prohibit specific breeds of dogs
that they must make an exception for a service animal of a prohibited breed, unless the dog poses
a direct threat to the health or safety of others, a determination that must be made on a case-by-
case basis.
90
Commenters suggesting that airlines are not able accurately to distinguish a pit
bull-type dog from a non-pit bull-type dog that may have similar features unless DNA testing has
90
See Frequently Asked Questions about Service Animals and the ADA, Questions 22-24, available at
https://www.ada.gov/regs2010/service_animal_qa.htmlhttps://www.ada.gov/regs2010/service_animal_qa.html
(July
20, 2015):
[I]f an individual uses a breed of dog that is perceived to be aggressive because of breed reputation,
stereotype, or the history or experience the observer may have with other dogs, but the dog is under the
control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation
cannot exclude the individual or the animal from the place of public accommodation. The animal can only
be removed if it engages in the behaviors mentioned in § 36.302(c) (as revised in the final rule) or if the
presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and
activities of the place of public accommodation.
See also 75 FR 56236, 52266-56267 (September 15, 2010):
[I]f an individual uses a breed of dog that is perceived to be aggressive because of breed reputation,
stereotype, or the history or experience the observer may have with other dogs, but the dog is under the
control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation
cannot exclude the individual or the animal from the place of public accommodation. The animal can only
be removed if it engages in the behaviors mentioned in § 36.302(c) (as revised in the final rule) or if the
presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and
activities of the place of public accommodation.