Supreme Court of Texas

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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”).
2

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”).
3

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” 
4

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 defines4 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.”).
5

The Code, however, does not define the term “impairment.” When 

a statute uses an undefined term, our well-established statutoryconstruction 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 
6

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

5 I 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 
7

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).

9 See, 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))).
8

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 

10 See, 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.
9

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.
10

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 
11

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 

12 The 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.” 
12

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.
13

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, threestep 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 
14

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 
15

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 fairhousing requirements, as opposed to employment discrimination. See id.

§ 819.112.
16

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, 
17

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. 
18

§ 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 weightrelated 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 
19

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)).
20

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.
21

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.

18 Because 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
22

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 
23

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.”).
24

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 
25

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