March19, 1987

Mr. Bill Bale Executive Director Texas Commissionon Human Rights P. 0..Box 13493 Austin. Texas 78711 Opinion No. m-648

Re: Certain mental or physical handicaps asproviding standing to file a complaint alleging employmentdiscrimination with theTexas CommissiononHumanRights

DearMr.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 onHumanRights 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’ meansaperson 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), HumenResources Code, but does not include aperson 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’ meansacondition 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), HumanResources Code, but does not

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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 acomplaint alleging employment discrimination under the Commission on HumanRights Act, the commission has not interpreted a handicap to be limited to the mental andphysical conditions expressly enumarated in sectlon 2.01(7) of the act. The cosssissloo intarprets a mental or physical handicapping condition as a permanent condition which mayor maynot be controlled bymedication or a corrective device andwhich mayor may not impair aperson’s ability to perform aparticular job. Underthe commission’s interpretation, a number of mental and physical conditions, including chronic illnesses anddiseases, maybe covered under the act for purposes of aperson having standing to file acomplaint. Weagree with the cossaission’s interpretation.
The domiuant consideration in construing a statute is the legislative intent. Mintonv. Frank, 545S.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 andnot from isolated portions of the act. City of Eouston v. MorganGuaranty International Bank. 666S.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.”

Theusual meaninn of the words “includinn” and “include” imulies
an incomplete listing. In Republic Insu&ce Co. v. Silverton Elevators, Inc., 493S.W.2d 748, 752 (Tex. 1973). the SupremeCourt 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:
Thewords ‘includes’ and ‘including’ are regarded by the authorities as being identical or equivalent 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 ’including’ is susceptible of different shades of

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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, 599S.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" andthe 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 RumanResources Code, which states that

'[hlandicapped person' means a person whohas a mental or physical handicap, including mental retardation, hardness-of hearing, deafness, speech impairment, visual handicap, being crippled. or anyother health impairment which requires special ambulatory devices or services.
Further, the legislature amendedboth definitions in committee to except from the definitions of "handicapped person" and "handicap" a oerson addicted to andacondition of addiction to anvdrugor 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 auexception makesplain the intent that the statute should apply Inall cases-not excepted." Seealso 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 "handicapped 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.). Weconclude that the commission's interpretation of the list

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of conditions In section 2.01(7) of article 5221k as apartial list of the conditions covered by the Commission on HumanRights Act is proper.
Youalso inquire whether the commission properly interprets the Commission on HumanRights Act to allow consideration of complaints madeby persons whomaybe discriminated against because employers perceive themto be handicapped. Under the comm~ssion’s interpretation’ 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 aninterpretation is warranted by the act.

Prior to September, 1983, section 121.003(f) of the Human Resources Codeprovided that

[a]n employer whoconducts 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 byajob is not impaired by the handicap and the person is otherwise qualified for thejob. (Emphasis added).

Section 121.003(f) was repealed in 1983 and replaced by the Commission on HumanRights 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.” SeeV.T.C.S. art. 5221k, 955.01, 5.02, 5.03. Section 1.04(b) of theact states:

(b) InArticle 5, ‘because of handicap’ or ‘on the basis of handicap’ refers to discrimination because of or onthe basis of aphysical or mental condition that does not impair an individual’s ability to reasonably perform a job. (Emphasis added).

To construe the Commission on HumanRights Act to deny standing to individuals discriminated against on the basis of an employerperceived 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, nowrit), 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 newstatute [Art. 5221k. V.T.C.S.1

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does not so require. It only requires a determination of whether or not an employer failed
or refused to hire an individual 'because of handicap.'

Weconclude 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 

### ifthe 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 memberof a labor organisation,leven when that assumption is incorrect' constitutes discrimination).

Your opinion request specifically refers to persons suffering from AIDSas being covered by the act. In School Board of Nassau Countyv. Arline, No. 85-1277 (U.S. March3, 1987), the United States SupremeCourt held that, under a comparable federal law, a person suffering from aphysical 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 anunreasonable risk of contagion, based uponthe reasonable medical judgment of public health officials. Weassumesimilar reasoning would apply to the coverage of the state act.*

1. InLunsford v. Cit of Bran. Chief Justice He&man, speaking for the court, stated that the reason in the mind of the employer, andnot the exact status of the employee, should govern." Id. at 117.
- 2. In American National Insurance Co. v. Fair Employment and Eouslng Co'meission, 651P.2d 1151 (Cal. 1982). the California Supreme Court, in a case where anemployee hadhigh blood pressure, gave the California Fair Employment and Eousing Act a broad interpretation, holding that aphysical handicap is anyphysical condition that has a disabling effect andmadeIt clear that the California Act Includes both physical conditions that presently disable and conditions that mayhandicap 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 andHousing Act and found that AIDSconstitutes a physical handicap. California Fair-Employment andHousing Commissionv. Raytheon Co., 55 LW2449 (2124187).

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SUMMARY

For purposes of standing to file a complaint alleging employment discrimination under the Commission on HumanRights Act, codified as artfcle 5221k, V.T.C.S., 'ahandicap is not limited to the mental and physical conditions expressly enumerated in section 2.01(7) of the act andmay include chronic illnesses andcontagious 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



### JACKEIGHTOWER First Assistant Attorney General

MARY KELLER Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared byNancySutton Assistant Attorney General

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