Texas Tech University Health Sciences Center - El Paso v. Dr. Lindsey Niehay ( 2023 )

Supreme Court of Texas
══════════
No. 22-0179
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Texas Tech University Health Sciences Center–El Paso,
Petitioner,
v.
Dr. Lindsey Niehay,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eighth District of Texas
═══════════════════════════════════════
JUSTICE BOYD, joined by Justice Lehrmann, dissenting.
“The term ‘disability’ . . . shall be construed
in favor of broad coverage of individuals . . .
to the maximum extent allowed.” 1
This should be a simple statutory-interpretation case governed by
well-established rules of statutory construction. The issue is whether
Dr. Lindsey Niehay submitted some evidence that Texas Tech
University Health Sciences Center dismissed her from its residency
1 TEX. LAB. CODE § 21.0021(a)(1) (emphases added); see also 42 U.S.C.
§ 12102(4)(A) (same except using “permitted” instead of “allowed”).
program “because of” a “disability,” in violation of Chapter 21 of the
Texas Labor Code. See TEX. LAB. CODE § 21.051(1). 2 The Court concludes
she didn’t, but only because it requires her to show that her physical
impairment was “caused by an underlying physiological disorder or
condition.” Ante at 2. Nothing in Chapter 21, however, imposes that
requirement or otherwise limits the term “disability” to physical or
mental impairments that result from any particular cause.
Nor does anything in any analogous federal law. To the contrary,
after the United States Supreme Court initially “narrowed the broad
scope of protection intended to be afforded” under the Americans with
Disabilities Act (ADA), 3 “thus eliminating protection for many
individuals whom Congress intended to protect” and thereby leading
lower courts to “incorrectly [find] in individual cases that people with a
range of substantially limiting impairments are not people with
disabilities,” Congress amended the ADA to expressly “reject” the
Court’s “inappropriately high level of limitation necessary to obtain
coverage under the ADA” and to “reinstate” a “broad view” of the ADA’s
2 The Legislature abolished the Texas Commission on Human Rights
twenty years ago and transferred its authority and responsibilities to the Texas
Workforce Commission. See TEX. LAB. CODE § 21.0015. In light of those
changes, this Court explained the following year that “we will not refer to
chapter 21 of the Labor Code as the Commission on Human Rights Act,” since
that Act no longer existed. Little v. Tex. Dep’t of Crim. Just., 148 S.W.3d 374,
377–78 (Tex. 2004). Although Texas courts, including this one, have continued
to refer in some opinions to the Texas Commission on Human Rights Act (or
TCHRA), I will refer simply to Chapter 21.
3 See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
196–97 (2002) (narrowly construing the terms “substantially limits” and
“major life activities”); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483–84
(1999) (holding that mitigating measures may negate a “disability”).
2
applicability. ADA AMENDMENTS ACT OF 2008, Pub. L. No. 110–325, § 2,
122 Stat. 3553, 3553–54 (expressly citing and rejecting the Court’s
holdings in Toyota and Sutton).
Among other revisions, Congress amended the ADA to expressly
require courts to construe the term disability “in favor of broad coverage
of individuals . . ., to the maximum extent permitted by the [ADA’s]
terms.” 42 U.S.C. § 12102(4)(A). In fact, Congress expressly conveyed its
“intent” that “the question of whether an individual’s impairment is a
disability under the ADA should not demand extensive analysis”;
instead, “the primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have complied with
their obligations.” 122 Stat. 3554. Because one of Chapter 21’s express
purposes is to “provide for the execution of the policies embodied in” the
ADA, TEX. LAB. CODE § 21.001(3), the Texas Legislature quickly followed
Congress’s lead, amending Chapter 21 to likewise require that the term
disability be construed “in favor of broad coverage of individuals” and
“to the maximum extent allowed,” id. § 21.0021(a)(1).
But sometimes it’s hard for judges to see the trees for the forest.
Distracted by policy preferences and fears of seemingly unwise or
“untenable” results, ante at 15, some (but certainly not all) courts have
continued to disregard the clear statutory language in favor of judicially
imposed requirements and limitations the courts assume must be what
Congress or the legislature intended (regardless of what they actually
said). But if we simply apply Chapter 21’s plain language in this case in
accordance with our well-established statutory-construction rules,
Niehay undeniably submitted some evidence that she had a “disability”
3
and that the University dismissed her from its residency program
“because of” that disability. To reach the opposite result, the Court
“bypasse[s] the statutory text entirely.” VF Jeanswear LP v. Equal Emp.
Opportunity Comm’n, 140 S. Ct. 1202, 1204 (2020) (Thomas, J.,
dissenting from denial of cert.).
I.
Texas Labor Code
The Texas Labor Code expressly defines 4 the term “disability” to
mean a “mental or physical impairment.” TEX. LAB. CODE § 21.002(6)
(emphasis added). More specifically, a disability is either (1) “a mental
or physical impairment that substantially limits at least one major life
activity,” (2) “a record of such an impairment,” or (3) “being regarded as
having such an impairment.” Id. (emphases added). In this Court,
Niehay relies only on the third option. For this option, Niehay must
establish that the University regarded her as having more than a
“minor” impairment that it “expected to last . . . less than six months,”
but she need not show that the University regarded her as having an
impairment that limited a “major life activity.” Id. § 21.002(12-a).
4 Because the statute defines the term “disability,” we must apply this
definition regardless of any other meaning the term may carry in other
circumstances. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890,
894 (Tex. 2018) (“[W]e must adhere to statutory definitions.”); Youngkin v.
Hines, 546 S.W.3d 675, 680 (Tex. 2018) (“Courts must adhere to legislative
definitions of terms when they are supplied.” (citing TEX. GOV’T CODE
§ 311.011(b))); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex. 2011) (“If a statute . . . assigns a particular meaning to a term, we are
bound by the statutory usage.”); see also TEX. GOV’T CODE § 311.011(b) (“Words
and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.”).
4
The Code, however, does not define the term “impairment.” When
a statute uses an undefined term, our well-established statutory-
construction rules require us to (1) apply the term’s “common, ordinary
meaning” unless (2) “a contrary meaning is apparent from the statute’s
language” or (3) application of the common, ordinary meaning would
lead to “absurd or nonsensical results.” KMS Retail Rowlett, LP v. City
of Rowlett, 593 S.W.3d 175, 183 (Tex. 2019) (quoting Molinet v. Kimbrell,
356 S.W.3d 407, 411 (Tex. 2011)); Tex. State Bd. of Exam’rs of Marriage
& Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 34 (Tex. 2017)
(citing Univ. of Tex. at Arlington v. Williams, 459 S.W.3d 48, 52 (Tex.
2015)). Under these rules, Niehay undeniably established that she
suffers from a physical impairment and thus a disability under
Chapter 21.
A. Common, ordinary meaning
To determine a word’s common, ordinary meaning, we look first
to the word’s dictionary definitions and then to its “usage in other
statutes, court decisions, and similar authorities.” Marriage & Fam.
Therapists, 511 S.W.3d at 34–35. Dictionaries define an “impairment”
as simply a diminishment, deterioration, or loss of function or ability.
See Impairment, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(2002); Impairment, THE OXFORD ENGLISH DICTIONARY (2d ed. 1989); see
also Impairment, STEDMAN’S MEDICAL DICTIONARY (5th ed. 1982)
(“Weakening, damage, or deterioration . . . .”); Impairment, BLACK’S
LAW DICTIONARY (11th ed. 2019) (“[A] condition in which a part of a
5
person’s mind or body is damaged or does not work well . . . .”). 5 Under
this plain meaning, an impairment is simply a loss, reduction, or
limitation in function or ability. To qualify as a “disability,” the
impairment must be “mental or physical” and must “substantially” limit
a major life activity (or be regarded as more than a “minor” impairment),
but nothing about the definition requires that the limitation be caused
by an underlying physiological disorder or any other particular cause or
source. See Impairment, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
(31st ed. 2007) (“[A]ny abnormality of, partial or complete loss of, or loss
of the function of, a body part, organ, or system; this may be due directly
or secondarily to pathology or injury . . . .”).
Neither the parties nor the Court has pointed to any other statute
using the term “impairment” in a way that suggests anything other than
its common, ordinary meaning, much less that a loss or limitation in
function qualifies as an “impairment” only if it results from a particular
cause. To the contrary, when the legislature intends to limit a statutory
reference to “impairments” to those resulting from a particular cause, it
consistently and expressly includes that limitation within the statute. 6
5I wholeheartedly agree with our concurring colleague’s explanation
that we must focus on the meaning of the term “impairment” as it was
commonly understood when the legislature enacted the statute using that
term. See ante at 2–3 (Blacklock, J., concurring). As these sources demonstrate,
however, the common, ordinary meaning of “impairment” has not changed over
time.
6 See, e.g., TEX. LAB. CODE § 401.011(23) (defining “impairment” for
workers-compensation purposes as “any anatomic or functional abnormality or
loss . . . that results from a compensable injury” (emphasis added)); TEX.
HEALTH & SAFETY CODE §§ 87.001(1) (defining “birth defect” to mean “a
physical or mental functional deficit or impairment . . . resulting from one or
6
Otherwise, Texas statutes consistently use the term “impairment” to
refer to a particular loss or diminishment regardless of its cause. 7
And this Court has consistently used the term “impairment” in
the same way—including when referring to mental or physical
impairments—to refer simply to a loss or diminishment in function, 8
unless the applicable statute expressly requires that the loss result from
a particular cause. 9 Indeed, in this Court’s prior decisions addressing
“disabilities” and “impairments” under Chapter 21, we have never
more genetic or environmental causes” (emphasis added)), 242.061(a)(2)
(defining “immediate threat to health and safety” as a situation in which
injury, harm, impairment, or death may be caused by a facility’s
noncompliance with statutory requirements).
7 Chapter 121 of the Human Resources Code, for example, which
specifically addresses the state’s policy “to encourage and enable persons with
disabilities to participate fully in the social and economic life of the state,” TEX.
HUM. RES. CODE § 121.001, defines “person with a disability” to include any
person who has a “hearing impairment,” a “speech impairment,” or a “visual
impairment,” id. § 121.002(4). Similarly, the Education Code defines “children
with disabilities,” in reference to those who are eligible to participate in a
school district’s special-education program, to include those with a “visual or
auditory impairment.” See TEX. EDUC. CODE §§ 29.003(b), 30.001(a). Neither
statute requires that the impairment result from any particular cause.
8 See, e.g., Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 138 & n.4
(Tex. 2017) (addressing whether a judge is “unable to hold court” in light of the
terms “disability” and “impairment,” without suggesting the terms require any
particular cause); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 198 n.35
(Tex. 2010) (observing that the phrase “serious health condition,” as used in
federal law, includes any serious “illness, injury, impairment, or physical or
mental condition,” without suggesting the terms require a particular cause).
9See, e.g., Ins. Co. of State of Penn. v. Muro, 347 S.W.3d 268, 275 (Tex.
2011) (noting that “impairment” under the Workers Compensation Act means
“any anatomic or functional abnormality or loss . . . that results from a
compensable injury” (quoting TEX. LAB. CODE § 401.011(23))).
7
suggested that the statute requires the claimant’s mental or physical
loss or limitation to result from any particular cause. 10
B. Statutory context
Under our well-established statutory-construction rules,
however, we may not apply an undefined term’s common, ordinary
meaning if “a contrary meaning is apparent from the statute’s
language.” Marriage & Fam. Therapists, 511 S.W.3d at 34 (citing
Williams, 459 S.W.3d at 52). For this reason, when construing an
undefined statutory term, we must consider the term’s usage within the
statute as a whole, allowing the statutory context to inform the term’s
meaning. See KMS Retail Rowlett, 593 S.W.3d at 183; TGS–NOPEC
Geophysical, 340 S.W.3d at 439. But nothing in Chapter 21 suggests it
uses the term “impairment” to mean anything other than a loss,
diminishment, or limitation in mental or physical function. To the
contrary, Chapter 21’s other provisions confirm that an “impairment” is
simply a “condition” that “limits” the claimant’s functions. See TEX. LAB.
CODE §§ 21.002(6), .0021(a)(2). In fact, at least two provisions appear to
use the term “limitation” interchangeably with the term “impairment.”
See id. § 21.128(a), (d) (requiring reasonable accommodations for “a
known physical or mental limitation of an otherwise qualified individual
with a disability”).
But in evaluating the context of section 21.002(6)’s use of the term
impairment to define the term disability, section 21.0021(b) provides the
10See, e.g., City of Houston v. Proler, 437 S.W.3d 529, 532–33 (Tex.
2014); Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 99–101 (Tex. 2004); Little,
148 S.W.3d at 381–84.
8
most crucial guidance. As emphasized above, that section expressly
states that the term disability “shall be construed in favor of broad
coverage of individuals under Subchapters B and C [of Chapter 21], to
the maximum extent allowed under those subchapters.” Id.
§ 21.0021(a)(1) (emphases added). In other words, directly contradicting
the Court’s analysis today, Chapter 21 expressly compels courts to
construe the term broadly without imposing any unexpressed
requirements.
C. Results
Even when—as here—the statutory context confirms the
common, ordinary meaning of an undefined term, we might not apply
that meaning if doing so would lead to “absurd or nonsensical results.”
KMS Retail Rowlett, 593 S.W.3d at 183. Here, the Court avoids such
strong terminology and instead refuses to apply the common, ordinary
meaning of “impairment” because, in its view, the results of doing so
would be “untenable.” Ante at 15. 11 But this exception to the
ordinary-meaning rule uses strong words for a reason: the
“absurdity bar ‘is high, and should be,’ because ‘mere oddity does not
equal absurdity.’” City of Fort Worth v. Rylie, 602 S.W.3d 459, 467 (Tex.
11 Today’s concurring opinion makes a similar argument. But instead of
relying on the “absurd” or “nonsensical” or “untenable” labels, it frets about the
“substantial social and economic consequences” of characterizing “obesity” as
a disability. Ante at 10 (Blacklock, J., concurring). The first answer to that
concern, of course, is that Chapter 21 does not define disability based on size
or weight, whether normal or abnormal. It defines it based on impairment—a
“limitation” of the person’s mental or physical “activities” and “functions.” TEX.
LAB. CODE §§ 21.002(6), (12-a), .0021(a)(2), (b), .105, .128(a), (d). The
concurring opinion incorrectly assumes that everyone who is obese must have
“substantially,” or at least “more than minor,” limited physical functions.
9
2020) (quoting Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630
(Tex. 2013)). If the legislature makes a policy choice to define the term
disability more broadly than we think is wise, we are not at liberty to
veto that choice. Our job is to read and apply statutes “as they are
written, not as they make the most policy sense” to us. Combs, 401
S.W.3d at 629.
In short, that the Court does not agree with the result the
statute’s plain language produces provides no basis for the Court to add
language to the statute. We must “take statutes as we find them,
presuming the Legislature included words that it intended to include
and omitted words it intended to omit.” Union Carbide Corp. v.
Synatzske, 438 S.W.3d 39, 52 (Tex. 2014). And we may not “read words
into a statute to make it what we consider to be more reasonable” or, I
would add, more tenable; “rather we may do so only to prevent an absurd
result.” Id. (citing Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927,
930 (Tex. 2010)). The “foremost task of legal interpretation” is to divine
“what the law is, not what the interpreter wishes it to be,” BankDirect
Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 78 (Tex. 2017), so
that ordinary citizens can rely on the statute’s language to mean what
it plainly says, PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 303
(Tex. 2019) (citing Fitzgerald v. Advanced Spine Fixation Sys., 996
S.W.2d 864, 866 (Tex. 1999)).
In any event, the Court and our concurring colleague fail to
consider whether the results that concern them are indeed the results
of applying the common, ordinary meaning of “impairment.” Even if the
term broadly includes physical limitations related to morbid obesity, or
10
even just to obesity, 12 that would not mean that every obese or morbidly
obese person could sue or recover from their employer for disability
discrimination. This is because, initially, most claimants who sue for
discrimination based on a disability must demonstrate that they suffer
from an impairment that “substantially limits at least one major life
activity,” or that they have a record of having such an impairment. TEX.
LAB. CODE § 21.002(6) (emphasis added). And those who claim that their
employer “regarded” them as having a disability must show that the
employer perceived them as having an impairment that is more than
“minor.” Id. § 21.002(12-a). Accordingly, claimants cannot rely simply on
the fact that they are obese or morbidly obese; they must demonstrate
that their obesity involves physical limitations that are substantial or
that are perceived to be more than just minor. See id. § 21.002(6), (12-a).
But more importantly, Section 21.105 provides that Chapter 21’s
provisions that refer to “disability” discrimination apply “only to
discrimination because of or on the basis of a physical or mental
condition that does not impair an individual’s ability to reasonably
perform a job.” TEX. LAB. CODE § 21.105 (emphasis added). So if a
claimant’s disability (that is, a mental or physical impairment) in fact
limits her ability to perform the job she has or seeks, Chapter 21 simply
12The Court incorrectly asserts that the parties here “appear to agree
that obesity, as opposed to morbid obesity, is not an impairment absent
evidence of an underlying physiological disorder or condition.” Ante at 13. To
the contrary, Niehay argues that “obesity, and in particular morbid obesity, is
accepted by the medical community as a physiological medical disorder” but
agrees that because the University does not dispute that it regarded her as
being morbidly obese, “[t]his Court does not need to reach the question of
whether obesity is an impairment under the ADA, because this question is not
presented here.”
11
does not prevent the employer from terminating her or refusing to offer
her the job “because of” that impairment. See Proler, 437 S.W.3d at 532
(quoting Section 21.105 and explaining that, like the federal
requirement that the applicant be a “qualified individual” who “can
perform the essential functions of the employment position,” Chapter 21
“similarly extends [only to a claim based on] ‘a physical or mental
condition that does not impair an individual’s ability to reasonably
perform a job’”). 13 Because Section 21.105 also uses the term “impair,”
its exception to Chapter 21’s applicability necessarily applies equally as
broadly as the definition of “disability.” Just as an application of the
common, ordinary meaning of “impairment” may expand the universe of
13 See Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 88 (Tex. App.—
Austin 1995, no writ) (“Sections 21.051 and 21.105 of the Texas Act make it an
unlawful employment practice for an employer to discharge a disabled person
on the basis of a disability when the disability does not impair the individual’s
ability to reasonably perform a job.” (emphasis added)); Holt v. Lone Star Gas
Co., 921 S.W.2d 301, 305 (Tex. App.—Fort Worth 1996, no writ) (citing Section
21.105’s predecessor for the proposition that, if the claimant’s “disability
impaired his ability to reasonably perform the job in question, it would not
have been an unlawful practice to have discharged [him] from his position”).
Arguably, the University could have sought dismissal in this case on the
ground that, under Section 21.105, Chapter 21 simply does not apply because
Niehay’s obesity impaired her ability to perform her job as a resident
physician. But the University did not assert this ground and instead argued
only that Niehay had no disability and, even if she did, the University did not
terminate her because of that disability. And because the University did not
assert it, Niehay has had no opportunity to argue why Chapter 21 applies
despite Section 21.105. We must therefore limit our decision to the issues the
University has raised and cannot decide today whether Section 21.105
prevents Niehay from asserting a claim under Chapter 21. My point here is
simply that, even if applying the common, ordinary meaning of “impairment”
would produce results as broad as the Court fears, the ultimate effect would
not be to more broadly expand claims for disability discrimination under
Chapter 21, but to more broadly limit them.
12
those who have a disability, in other words, Section 21.105 reduces the
number of claimants who can sue under Chapter 21 when that disability
impairs their job performance.
In summary, applying the statute’s plain language in accordance
with our well-established rules of construction requires a simple, three-
step analysis that streamlines its application to every case and avoids
the kind of legislative decision-making in which the Court engages
today. First, did the claimant have a limitation or reduction in their
mental or physical functions and abilities or a record of having such a
limitation (or did the employer regard them as having one)? If not, they
have no claim under Chapter 21. But if so, they had an “impairment,”
which leads to the second question: did that impairment substantially
limit a major life activity (or did the employer regard it as more than a
minor limitation that would last less than six months)? If not, they have
no claim under Chapter 21. But if so, they had a “disability” under
Chapter 21, leading to the third question: did that disability limit or
reduce their ability to perform the job they had or were seeking? If so,
then Chapter 21 does not apply and the claimant has no claim. But if
not—if the disability substantially limited the claimant’s daily life
activities but not their ability to perform the job—then Chapter 21
applies and the employer may be liable for taking an adverse action
against the claimant “because of” that disability.
Because other statutes, our decisions, and the statutory context
confirm the common, ordinary meaning of “impairment” as used in
Chapter 21, and because that meaning does not produce an absurd or
nonsensical result, I would apply that meaning here. And nothing about
13
that meaning requires that the claimant’s mental or physical
impairment result from an underlying physiological disorder or any
other particular cause.
II.
Federal Authorities
As noted, however, Chapter 21 also states that one of its express
purposes is to “provide for the execution of the policies embodied in” the
federal ADA. TEX. LAB. CODE § 21.001(3) (citing 42 U.S.C. §§ 12101 et
seq.). In light of this express purpose, we have consistently looked to
federal court decisions and federal administrative regulations for
guidance when interpreting Chapter 21, including the terms “disability”
and “impairment.” See Little, 148 S.W.3d at 382 (“[B]oth the federal
court decisions interpreting the ADA and the federal administrative
regulations regarding the ADA guide our interpretation of the definition
of ‘disability’ contained in chapter 21.”). 14
14 See also Proler, 437 S.W.3d at 532 (“In construing Texas law on this
subject, we consider federal civil rights law as well as our own caselaw.”);
Haggar Apparel, 154 S.W.3d at 100 (“[I]n construing and applying chapter 21,
we are guided by federal law.”); Quantum Chem. Corp. v. Toennies, 47 S.W.3d
473, 476 (Tex. 2001) (“[A]nalogous federal statutes and the cases interpreting
them guide our reading of [Chapter 21].” (citing NME Hosps., Inc. v. Rennels,
994 S.W.2d 142, 144 (Tex. 1999))). Our concurring colleague emphasizes that,
although federal authorities can helpfully “guide[]” our construction of Chapter
21, they are not authoritative or binding on Texas courts. Ante at 8 (Blacklock,
J., concurring). I agree, but we should be particularly hesitant to construe
Chapter 21 in ways inconsistent with clear federal authorities because Chapter
21 aims to do more than just execute the ADA’s policies. Specifically, some of
Chapter 21’s provisions and requirements are aimed at ensuring that the State
of Texas can participate in federal anti-discrimination programs and receive
federal funds to support its participation. See, e.g., TEX. LAB. CODE § 21.001(2)
(stating that one purpose of Chapter 21 is to “identify and create an authority
that meets the criteria” of federal law). Indeed, one interesting provision states
14
But on the issue before us today—whether an impairment
qualifies as a disability only if it is caused by an underlying physiological
condition—federal law provides no clear guidance and is conflicting at
best. Like Chapter 21, the ADA prohibits discrimination “because of” a
“disability” and defines the term disability by using the term
“impairment,” but it also does not define the term “impairment.” 42
U.S.C. § 12102(1), (3). Exercising its rulemaking authority, however, the
EEOC has adopted a regulation defining the term impairment to mean
a “physiological disorder or condition . . . affecting one or more body
systems.” 29 C.F.R. § 1630.2(h)(1) (emphasis added). 15
Applying this definition’s plain meaning, weighing over four
hundred pounds is undoubtedly a physiological condition that affects
one or more body systems. The University argues, however, and the
that, if we were to construe a provision in a way that, in the view of the federal
Equal Employment Opportunity Commission (the EEOC), disqualifies the
Texas Workforce Commission “as a deferral agency or for the receipt of federal
funds” under federal law, the Workforce Commission must nevertheless
“administer this chapter to qualify for deferral status or the receipt of those
funds until the legislature meets in its next session and has an opportunity to
amend this chapter.” Id. § 21.006. So while federal law does not dictate our
construction of Chapter 21, we have consistently relied on it for guidance for
good reason, even suggesting that Chapter 21’s purpose includes the
“correlation of state law with federal law in the area of discrimination in
employment.” Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.
1991) (emphasis added), overruled on other grounds by In re United Servs.
Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010).
15 Exercising its rulemaking authority under Texas law, the Workforce
Commission has adopted a rule that defines “impairment” in the same way.
See 40 TEX. ADMIN. CODE § 819.112(8)(a). This Texas rule, however, applies
only to provisions of Chapter 21 that address housing discrimination and fair-
housing requirements, as opposed to employment discrimination. See id.
§ 819.112.
15
Court agrees, that to qualify as an impairment under the EEOC
regulation’s definition, the physiological condition must be an
“abnormal bodily function or state,” similar to a “disorder.” Ante at 16
(emphasis added). But weighing over four hundred pounds is an
abnormal bodily state. The “accumulation of fat cells” may, as the Court
contends, be a “normal bodily process,” id. (emphasis added), but that
does not make a human habitus of over four hundred pounds a normal
bodily state or condition. The regulation defines “disability” in terms of
limiting mental and physical conditions, not underlying mental or
physical processes. See 29 C.F.R. § 1630.2(h)(1).
This does not mean, as the Court suggests, that “any employee
whose weight—or other physical characteristic—is even slightly outside
the ‘normal range’ would have a physical impairment even with no
underlying physiological cause.” Ante at 18 (quoting Richardson v. Chi.
Transit Auth., 926 F.3d 881, 890 (7th Cir. 2019)). The statute requires
an impairment, not just a condition. Like statutory definitions,
regulatory definitions “must be interpreted in light of the ordinary
meaning of the word being defined.” In re Ford Motor Co., 442 S.W.3d
265, 271 (Tex. 2014); see also Tex. Comm’n on Env’t Quality v. Maverick
County, 642 S.W.3d 537, 544 (Tex. 2022) (stating that courts interpret
regulations “using the same principles” they apply in construing
statutes (citing Patients Med. Ctr. v. Facility Ins. Co., 623 S.W.3d 336,
341 (Tex. 2021))). And as discussed, the ordinary meaning of the word
“impairment” is a loss or limitation of function or ability, without regard
to its cause. In turn, a person whose physiological condition is “slightly
outside the ‘normal range,’” or even greatly outside the normal range,
16
would have an “impairment” only if that “abnormal” condition limits the
person’s physical functions and abilities. And even then, the impairment
would qualify as a disability only if it substantially limits a major life
activity or is perceived to do so to more than a minor degree. See TEX.
LAB. CODE § 21.002(6), (12-a).
As an appendix to its regulation, the EEOC issued an
“Interpretive Guidance” further explaining that the regulation’s
“definition of the term ‘impairment’ does not include physical
characteristics such as eye color, hair color, left-handedness, or height,
weight, or muscle tone that are within ‘normal’ range and are not the
result of a physiological disorder.” 29 C.F.R. app. § 1630.2(h) (emphases
added). On the one hand, this Guidance statement provides support for
the Court’s assertion that, at least in the EEOC’s view, “weight” can be
a “characteristic.” See ante at 18. But contrary to the Court’s assertion,
the Guidance also confirms that, in the EEOC’s view, a “characteristic”
like “weight” can be an impairment if it is not “within ‘normal’ range” or
is “the result of a physiological disorder.” 29 C.F.R. app. § 1630.2(h).
Like the University, the Court reads the Guidance statement to
mean that weight can be an impairment “only if it falls outside of normal
range and it occurs as the result of a physiological disorder.” Ante at 18
(quoting Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1108 (8th Cir. 2016)).
According to the Court, “changing the sentence to be a statement in the
affirmative” confirms that reading. Id. But the Court changes only part
of the statement. Focusing solely on weight, the Guidance states that
“impairment” does not include weight that is within normal range and
is not the result of a physiological disorder. See 29 C.F.R. app.
17
§ 1630.2(h). In shorthand, “impairment does not include X if X is A and
is not B.” Because of the use of “and,” X must be both A and “not B” to
qualify as an impairment. The meaning would be different, of course, if
the Guidance stated that “impairment” does not include weight that is
within normal range or is not the result of a physiological disorder. In
that case, the shorthand would be that “impairment does not include X
if X is A or is not B.” And then X would be an impairment if it was (only)
A or (only) “not B.”
But we need not rely on my reading to confirm that result. To the
extent we care what the EEOC thinks (and as discussed below, I’m not
convinced we should), it has argued in the federal courts that, under its
Guidance statement, weight “(1) is not an impairment when it is within
the ‘normal’ range and lacks a physiological cause but (2) may be an
impairment when it is either outside the ‘normal’ range or occurs as the
result of a physiological disorder.” Taylor v. Burlington N. R.R. Holdings
Inc., 904 F.3d 846, 851 (9th Cir. 2018) (emphases added).
Finally, as the Court concedes, the federal courts (and other state
courts) have “disagree[d] with each other” as to the meaning of federal
law on this point. Ante at 12; see also id. at 19 n.49 (citing Richardson,
926 F.3d at 887 (listing cases)). As Niehay notes, all the federal courts
within the Fifth Circuit that have addressed the issue have declined to
impose an underlying-physiological-disorder requirement for weight-
related disability claims. 16 Although the Court hangs its hat on the
16 See, e.g., Lumar v. Monsanto Co., 395 F. Supp. 3d 762, 778 (E.D. La.
2019), aff’d, 795 F. App’x 293 (5th Cir. 2020); McCollum v. Livingston, No. 4:14-
CV-3253, 2017 WL 608665, at *35 (S.D. Tex. Feb. 3, 2017); E.E.O.C. v. Res. for
18
decisions of four other federal circuits, I find those decisions unreliable
for the very reasons I cannot agree with the Court today. 17 To the extent
those courts, or others, hold that merely being (or being regarded as)
obese or even morbidly obese does not qualify as a disability, I agree. To
qualify as a disability under the ADA or Chapter 21, the claimant must
have a mental or physical limitation—an “impairment”—that is
substantial or regarded as more than minor.
Personally, I would eschew any reliance on the EEOC’s litigation
positions or on its Interpretive Guidance and would place very little
weight on its regulation, even though they support my interpretation of
Hum. Dev., Inc., 827 F. Supp. 2d 688, 695–96 (E.D. La. 2011); Lowe v. Am.
Eurocopter, LLC, No. 1:10CV24-A-D, 2010 WL 5232523, at *7–8 (N.D. Miss.
Dec. 16, 2010); E.E.O.C. v. Tex. Bus Lines, 923 F. Supp. 965, 978–79 (S.D. Tex.
1996).
17 See Richardson, 926 F.3d at 888–90 (claiming that an underlying
physiological disorder is required by “the ADA’s text,” but relying only on (and
misreading) the EEOC’s Guidance statement); Morriss, 817 F.3d at 1108, 1113(claiming the same, but in any event concluding that the claimant established
no disability because he was denied employment simply because he exceeded
the employer’s internal weight limits, not because the employer perceived him
as having a physical impairment or “current health risk”); E.E.O.C. v. Watkins
Motor Lines, Inc., 463 F.3d 436, 442 (6th Cir. 2006) (stating that an underlying
physiological disorder is required, but the case was decided before the ADA
Amendments Act and relied on Sutton, which Congress expressly rejected);
Francis v. City of Meriden, 129 F.3d 281, 282, 286 (2d Cir. 1997) (holding the
claimant failed to show discrimination based on a disability because the
employer disciplined him only “for failing to meet a generally applicable weight
standard,” not because it “regarded him as suffering from a physiological
weight-related disorder;” and explaining that “while a cause of action may lie
against an employer who discriminates against an employee on the basis of the
perception that the employee is morbidly obese or suffers from a weight
condition that is the symptom of a physiological disorder, no cause of action
lies against an employer who simply disciplines an employee for not meeting
certain weight guidelines” (emphases added) (internal citations omitted)).
19
Chapter 21’s definition of “disability.” See, e.g., VF Jeanswear, 140 S. Ct.
at 1204 (Thomas, J., dissenting from denial of cert.) (asserting that
judicial “reliance on and deference to the EEOC’s regulation . . . seems
inappropriate” and that “invocation of the EEOC Compliance
Manual . . . directly conflicts with the constitutional duty of a judge to
faithfully and independently interpret the law”). And because the
federal circuits on which the Court relies today in turn relied so heavily
on the Guidance, I would not rely on them to construe Chapter 21 either.
Instead, I would focus—as I have done in Part I above—on “the most
useful, and perhaps dispositive, evidence—the text” of Chapter 21 and
the ADA. Id. And as noted, the statutory text does not require that the
claimant’s impairment result from any particular cause.
III.
Niehay’s Evidence
If we apply the common, ordinary meaning of the term
“impairment,” as Chapter 21 uses that term to define “disability,” the
University does not contest that some evidence in this record establishes
that the University perceived Niehay as having a disability. Indeed, the
evidence conclusively establishes that the University perceived Niehay
not only as being morbidly obese but also as being physically impaired
as a result of her obesity. As to that issue, the University contends only
that no evidence supports the conclusion that the University perceived
her obesity as being caused by an underlying physiological disorder.
Because the statute’s plain language does not impose that requirement,
the record establishes that the University regarded Niehay as having a
disability.
20
The question then becomes whether the record contains some
evidence that the University terminated Niehay “because of” her
disability. To be sure, the record contains ample evidence that the
University disciplined and ultimately dismissed Niehay for numerous
legitimate, nondiscriminatory reasons. From the first formal negative
report about her performance in December 2015 through and until the
University’s president upheld Niehay’s dismissal in May 2016, the
record is littered with evidence that the University acted on reports of
Niehay’s inadequate attendance, performance, motivation, attitude, and
patient care, as well as an apparent defensiveness and unwillingness to
address her patients’ needs.
But despite the overwhelming weight of this evidence, we must
yet affirm the court of appeals’ judgment if some evidence would enable
a reasonable juror to conclude that Niehay’s obesity-related
impairments were “a motivating factor” for the University’s adverse
actions, even if “other factors also motivated” those actions. See Tex.
Tech Univ. Health Sci. Ctr.–El Paso v. Flores, 612 S.W.3d 299, 305 (Tex.
2020). Niehay contends that direct evidence supports that assertion,
meaning evidence that, “if believed, proves the fact . . . without
inference or presumption.” Williams-Pyro, Inc. v. Barbour, 408 S.W.3d
467, 478 (Tex. App.—El Paso 2013, pet. denied) (quoting Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). 18 I agree.
18Because it is often difficult to prove discriminatory intent with direct
evidence, a claimant may alternatively rely on circumstantial evidence
instead. Flores, 612 S.W.3d at 305. “When a plaintiff relies on circumstantial
evidence to establish a discrimination claim, we follow the burden-shifting
framework the United States Supreme Court established in McDonnell
21
Some of the evidence on which Niehay relies relates to a
conversation the residency program’s director, Dr. Wells, had with the
University’s assistant general counsel in January 2016, seeking legal
advice on how to properly respond to Niehay’s performance issues. Wells
asked Yolanda Salas, the residency program’s coordinator, to attend
that meeting to take notes, and Salas later testified in her deposition
that Wells suggested to the attorney that Niehay was performing poorly
“because of her weight.” According to Salas, the attorney told Wells that
she could not discipline Niehay for that reason and would have to “find
other reasons than that” to avoid an appearance that she was
discriminated against because of her weight.
The University objected to Niehay’s reliance on Salas’s testimony
because the conversation was a privileged attorney–client
communication and Salas (who, by the time of her deposition, had
asserted her own, separate discrimination claim against the University)
had no authority to waive that privilege or disclose the conversation.
Niehay contends the University failed to preserve and thus waived the
privilege by failing to instruct Salas not to answer questions eliciting
the communications or, alternatively, by failing to suspend the
deposition to obtain a ruling from the trial court. 19 I need not resolve
Douglas Corp. v. Green, [411 U.S. 792 (1973)].” Id. Because Niehay contends
that direct evidence establishes the University’s intent in this case, we need
not apply the McDonnell Douglas analysis here.
19 See TEX. R. CIV. P. 199.5(f) (“An attorney may instruct a witness not
to answer a question during an oral deposition only if necessary to preserve a
privilege . . . or secure a ruling pursuant to paragraph (g).”), 199.5(g)
(“If . . . the deposition is being conducted or defended in violation of these rules,
a party or witness may suspend the oral deposition for the time necessary to
22
this dispute, however, because other direct evidence—besides the
communications between Wells and the attorney—supports Niehay’s
claim that her obesity-related impairments were a motivating factor
behind the University’s adverse actions.
Specifically, the doctor who submitted the initial report about
Niehay’s impaired performance stated in her report that she “blame[d]”
Niehay’s performance “struggle[s]” on her “habitus.” Wells in turn
reported to at least one physician that Niehay’s “difficulties with simple
procedures” were “largely due to her body habitus and health state.” A
lot of evidence establishes that Niehay’s refusals and delays in
performing procedures on patients were due to the fact that the
emergency-medicine department in which she worked did not stock
“double-extra-large” sterile surgical gowns, which Niehay was required
to wear for certain patient procedures.
Even more directly, Niehay testified by deposition that after she
was dismissed, Salas told her that the University had taken
“unscrupulous” actions behind Niehay’s back that Salas “believed were
related to my weight and not my performance.” According to Niehay,
Salas said she “felt like the reason why they were treating me in the way
that they were was due to my weight and my disability.” And most
obtain a ruling.”), 199.5(e) (“Objections to questions during the oral deposition
are limited to ‘Objection, leading’ and ‘Objection, form.’ Objections to testimony
during the oral deposition are limited to ‘Objection, nonresponsive.’ . . . All
other objections need not be made or recorded during the oral deposition to be
later raised with the court.”), 199.6 (“Any party may, at any reasonable time,
request a hearing on an objection or privilege asserted by an instruction not to
answer or suspension of the deposition; provided the failure of a party to obtain
a ruling prior to trial does not waive any objection or privilege.”).
23
importantly, Salas herself testified that Wells was “picking on” Niehay,
was “trying to find an excuse to find something [Niehay] was doing
wrong,” wouldn’t hear Niehay’s “side of the story,” and “mention[ed] on
occasions that [Niehay] couldn’t perform due to her weight.” And,
according to Salas, after she and Wells left the meeting with the
attorney, Wells told Salas “that she felt like [Niehay] wasn’t performing
well because of her weight.” Salas testified that Wells treated Niehay
“differently in a way because of her weight” and “discriminate[d] against
her because of her weight.”
Without considering evidence regarding the conversation
between Wells and the University’s attorney, this evidence constitutes
some evidence that would enable a reasonable juror to conclude that the
University took adverse employment actions against Niehay “because
of” physical impairments related to morbid obesity.
IV.
Conclusion
In this case, we are not called upon to decide whether Chapter 21
or the ADA should treat obesity-related physical impairments as a
disability, or even to decide whether Niehay can or should prevail on her
Chapter 21 claim. As explained above, the first question is for the
legislature to decide, and the second must depend on the resolution of
both legal and factual issues that are not presently before the Court. As
a factual matter, a jury could certainly conclude on this record that the
University dismissed Niehay for an array of permissible reasons
unrelated to her physical limitations. And as a matter of law, her claims
might not ever reach a jury if Section 21.105 makes Chapter 21
inapplicable under the undisputed facts. But those questions are not
24
before us today. The only questions before us today are whether Niehay
presented some evidence that the University regarded her as having a
“disability” and dismissed her “because of” that disability. Applying
Chapter 21’s plain language in accordance with our well-established
rules of statutory construction, I conclude she did. Because the Court
holds otherwise, I respectfully dissent.
Jeffrey S. Boyd
Justice
OPINION FILED: June 30, 2023
25