Untitled Texas Attorney General Opinion ( 1987 )

March 19, 1987
Mr. Bill Bale Opinion No. m-648
Executive Director
Texas Commission on Re: Certain mental or physical
HumanRights handicaps as providing standing to
P. 0.. Box 13493 file a complaint alleging employ-
Austin. Texas 78711 ment discrimination with the Texas
Commission on HumanRights
Dear Mr. Bale:
You request clarification of the mental or physical handicaps
which provide standing to a person to file a complaint alleging
employment discrimination under the Texas Commission on Human Rights
Act, codified as article 5221k, V.T.C.S.
A person claiming to be aggrieved by an unlawful employment
practice may file a complaint with the commission. Art. 5221k.
16.01(a). Article V of the act prohibits specific employment
practices that discriminate against an individual on the basis of
race, color, handicap. religion, sex, national origin, or age.
Section 2.01(7) of the act provides:
(7)(A) ‘Handicapped person’ means a person who
has a mental or physical handicap, including
mental retardation, hardness of hearing, deafness,
speech impairment, visual handicap, being
crippled, or any other health impairment that
requires special ambulatory devices or services,
as defined in Section 121.002(4), Humen Resources
Code, but does not include a person because he is
addicted to any drug or illegal or federally
controlled substances or because he Is addicted to
the use of alcohol.
0) ‘Handicap’ means a condition either mental
or physical that includes mental retardation,
hardness of hearing. deafness, speech impairment,
visual handicap, being crippled, or any other
health impairment that requires special ambulatory
devices or services, as defined in Section
121.002(4), Human Resources Code, but does not
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Mr. Bill Bale - Page 2 (JM-648)
include a condition of addiction to any drug or
illegal or federally controlled substances or a
condition of addiction to the use of alcohol.
(Emphasis added).
V.T.C.S. art. 5221k. §2.01(7).
For purposes of determining standing to file a complaint alleging
employment discrimination under the Commission on Human Rights Act,
the commission has not interpreted a handicap to be limited to the
mental and physical conditions expressly enumarated in sectlon 2.01(7)
of the act. The cosssissloo intarprets a mental or physical handi-
capping condition as a permanent condition which may or may not be
controlled by medication or a corrective device and which may or may
not impair a person’s ability to perform a particular job. Under the
commission’s interpretation, a number of mental and physical condi-
tions, including chronic illnesses and diseases, may be covered under
the act for purposes of a person having standing to file a complaint.
We agree with the cossaission’s interpretation.
The domiuant consideration in construing a statute is the
legislative intent. Minton v. Frank, 545 S.W.2d 442, 445 (Tex. 1976);
Calvert v. British-American Oil Producing Co., 397 S.W.Zd 839, 842
(Tex. 1965). The intention of the legislature should be ascertained
from the entire act and not from isolated portions of the act. City
of Eouston v. Morgan Guaranty International Bank. 666 S.W.2d 524, 529
(Tex. App. - Eouston [lst Dist.] 1983, writ ref’d n.r.e.). Section
1.03 of article 5221k provides that the act “shall be construed
according to the fair import of its terms.”
The usual meaninn of the words “includinn” and “include” imulies
an incomplete listing. In Republic Insu&ce Co. v. Silverton
Elevators, Inc., 493 S.W.2d 748, 752 (Tex. 1973). the Supreme Court of
Texas referred to the “well settled rule that the ‘words ‘include,’
‘including,’ and ‘shall include’ are generally employed as terms of
enlargement rather than limitation or restriction.” In Peerless
Carbon Black Co. v. Sheppard, 113 S.W.2d 996, 997 (To%. Civ. App. -
Austin 1938, writ ref’d). the court said:
The words ‘includes’ and ‘including’ are regarded
by the authorities as being identical or equi-
valent to each other: and the authorities
uniformly hold that unless the context in which
such words are used requires, they are never
regarded as being identical with or equivalent to
‘mean and include,’ nor with such less elastic
words and terms as ‘meant, ’ ‘meaning,’ or ‘by
which is meant’. . . . [Wlhile the word ’in-
cluding’ is susceptible of different shades of
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Mr. Bill Bale - Page 3 (3-f-648)
meaning, 'it is generally employed as a term of
enlargement and not a term of limitation, or of
enumeration'. . . . In consequence, it follows
that the use of the word 'includes' . . . instead
of some less elastic word or term, such as
'meaning,' 'meant,' or 'by which is meant,' would
seem clearly to imply that the Legislature did
not intend to use the word 'includes' as one of
limitation or of enumeration, but rather of
enlargement, or as illustrative of those Intended
to be included within the taxing act.
See also Pierce v. Peters, 599 S.W.2d 849. 851 (Tex. Civ. App. - San
Antonio 1980,n0 wit).
It is our opinion that the legislature does not intend a
different meaning by the use of "including" in the definition of
"handicapped person" and the use of "that includes" in the definition
of "handicap." In both definitions, the legislature incorporated the
definition used in section 121.002(4) of the Ruman Resources Code,
which states that
'[hlandicapped person' means a person who has a
mental or physical handicap, including mental
retardation, hardness- of hearing, deafness, speech
impairment, visual handicap, being crippled. or
any other health impairment which requires special
ambulatory devices or services.
Further, the legislature amended both definitions in committee to
except from the definitions of "handicapped person" and "handicap" a
oerson addicted to and a condition of addiction to anv drug or illegal
br federally controlled substance or addiction to the use-of alcohol.
In State v. Richards, 301 S.W.2d 597, 600 (Tex. 1957), the Texas
Supreme Court stated that "[ilt Is a familiar rule of statutory
construction that au exception makes plain the intent that the statute
should apply In all cases-not excepted." See also Providence Hospital
611 S.W.2d 127, 133 (Tex. Civ. App. - Waco 1980, writ
Since the legislature specifically exceoted addiction to
drugs; controlled substances, and' alcohol,- it follows that other
conditions are Intended to be included in the definitions of "handi-
capped person" and "handicap."
The construction of a statute by the state agency charged with
its administration is entitled to great weight. Heard v. City of
Dallas, 456 S.W.Zd 440. 444 (Tex. Clv. App. - Dallas 1970, writ
EiFTn.r.e.); Armco Steel Corporation v. Texas Employment Commis-
&, 386 S.W.2d 894 (Tex. Civ. App. - Austin 1965. writ ref'd
n.r.e.). We conclude that the commission's interpretation of the list
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Hr. Bill Bale - Page 4 (JM-648)
of conditions In section 2.01(7) of article 5221k as a partial list of
the conditions covered by the Commission on Human Rights Act is
proper.
You also inquire whether the commission properly interprets the
Commission on Human Rights Act to allow consideration of complaints
made by persons who may be discriminated against because employers
perceive them to be handicapped. Under the comm~ssion’s interpreta-
tion’ discrimination by an employer based on a perception that the
person Is handicapped would be actionable under the act regardless of
whether the person actually Is handicapped. It is our opinion that
such an interpretation is warranted by the act.
Prior to September, 1983, section 121.003(f) of the Human
Resources Code provided that
[a]n employer who conducts business in this state
may not discriminate in his or her employment
practices against a handicapped person on the
basis of the handicap if the person’s ability to
perform the task required by a job is not impaired
by the handicap and the person is otherwise
qualified for the job. (Emphasis added).
Section 121.003(f) was repealed in 1983 and replaced by the Commis-
sion on Human Rights Act, which prohibits employers, em$loyment
agencies, and labor organizations from discriminating against “an
individual . . . because of race, color, handicap, religion, sex,
national origin, or age.” See V.T.C.S. art. 5221k, 955.01, 5.02,
5.03. Section 1.04(b) of theact states:
(b) In Article 5, ‘because of handicap’ or ‘on
the basis of handicap’ refers 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. (Emphasis
added).
To construe the Commission on Human Rights Act to deny standing to
individuals discriminated against on the basis of an employer-
perceived handicap because the person actually is not handicapped
would disregard the plain language of the act. In Carter V. Gulf Oil
Corp., 699 S.W.2d 907. 910 (Tex. App. - Beaumont 1985, no writ), the
court stated:
Thus the old statute [Sec. 121.003(f). Human
Resources Code] required a determination of
whether or not the plaintiff was a ‘handicapped
person. ’ The new statute [Art. 5221k. V.T.C.S.1
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Mr. Bill Hale - Page 5 (JM-648)
does not so require. It only requires a deter-
mination of whether or not an employer failed
or refused to hire an individual 'because of
handicap.'
We conclude that the connnlssion's interpretation, which grants
standing to file complaints to individuals discriminated against on
the basis of an employer-perceived handicap, is consistent with the
language of the act. even if the oerson actuallv does not have a
ha&cap. See generally
. Lunsford v. City of Bryan, 297 S.W.2d 115
(Tex. 1957) (employer discharging employee because he thinks employee
is a member of a labor organisation,leven when that assumption is
incorrect' constitutes discrimination).
Your opinion request specifically refers to persons suffering
from AIDS as being covered by the act. In School Board of Nassau
County v. Arline, No. 85-1277 (U.S. March 3, 1987), the United States
Supreme Court held that, under a comparable federal law, a person
suffering from a physical impairment which substantially limited "one
or more of her major life activities” could not be excluded from
coverage under the federal act which protects the rights of the
handicapped, 29 U.S.C. 0794, merely because the impairment was also
contagious -- in that case tuberculosis. The Court concluded,
however, that discrimination against sufferers of contagious disease
may not constitute unlawful discrimination if the persons are not
"otherwise qualified" for the job because of an unreasonable risk of
contagion, based upon the reasonable medical judgment of public health
officials. We assume similar reasoning would apply to the coverage of
the state act.*
1. In Lunsford v. Cit of Br an. Chief Justice He&man, speaking
for the court, stated that the reason in the mind of the employer,
and not the exact status of the employee, should govern." -Id. at 117.
2. In American National Insurance Co. v. Fair Employment and
Eouslng Co'meission, 651 P.2d 1151 (Cal. 1982). the California Supreme
Court, in a case where an employee had high blood pressure, gave the
California Fair Employment and Eousing Act a broad interpretation,
holding that a physical handicap is any physical condition that has a
disabling effect and made It clear that the California Act Includes
both physical conditions that presently disable and conditions that
may handicap in the future but have no present disabling effect. A
recent ruling of that commission rejected an employer's contention
that the commission lacked jurisdiction because AIDS does not
constitute a physical handicap under the California Fair Employment
and Housing Act and found that AIDS constitutes a physical handicap.
California Fair-Employment and Housing Commission v. Raytheon Co., 55
LW 2449 (2124187).
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Mr. Bill Hale - Page 6 (JM-648)
SUMMARY
For purposes of standing to file a complaint
alleging employment discrimination under the
Commission on Human Rights Act, codified as
artfcle 5221k, V.T.C.S., 'a handicap is not limited
to the mental and physical conditions expressly
enumerated in section 2.01(7) of the act and may
include chronic illnesses and contagious diseases.
Persons discriminated against on the basis of
handicaps perceived by their employers have
standing to complain under the act, even if the
person in fact is not handicapped.
Attorney General of Texas
JACK EIGHTOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
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