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An Interesting test for the ADA (Americans with Disabilities Act)

Posted by Giovanna A. D'Orazio | May 13, 2013 | 0 Comments

Ada 20test

The Albany Times Union reported this week about a lawsuit filed by a mentally disabled couple in Long Island, NY. The couple, who has been together for at least three years, each reside in Port Jefferson, NY group homes. The group homes will not permit the recently married couple to live together, asserting that because they are requiring the services of a group home they are incapable of living together. At least one of the homes has also asserted that one or both lack the mental capacity to consent to sexual intercourse.

The challenge to the homes comes under the Americans with Disabilities Act (ADA), which requires, in part, that a public entity make reasonable modifications in its policies in order to avoid discrimination on the basis of disability. The real issue, however, is whether, under the ADA, mentally disabled individuals can consent to marriage and/or sexual activity, and at what point a court would step in to draw the line.

We acknowledge that this is an extremely difficult issue, both legally and practically. Having represented many individuals with mental disabilities, we know first hand how challenging it can be to find a balance between their individual rights and the rights of an institution tasked with ensuring their safety and well being. We are not envious of a court that has to attempt to draw that line, nor do we believe such a line can or will be clear. Mental disability, by its nature, can affect each individual in a profoundly different manner, and to suggest that a bright line test of what would be a “reasonable accommodation” could be achieved is to ignore that reality.

We suspect that the Court will try very hard to refrain from deciding much beyond the specific issues involved in this particular case, to try and avoid any grand pronouncements. But be assured, as Albany, New York disability discrimination attorneys, we will be following this case very closely.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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