March 19, 1987 

Mr. Bill Bale 

Executive Director 

Texas Commission on 

Human Rights 

P. 0.. Box 13493 

Austin. Texas 78711 

Opinion No. m-648 

Re: Certain mental or physical 

handicaps as providing standing to 

file a complaint alleging employment discrimination with the Texas 

Commission on Human Rights 

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 

p. 2942 
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 handicapping 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 conditions, 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 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 

p. 2943 
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 "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.). We conclude that the commission's interpretation of the list 

p. 2944 
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 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 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 Commission 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 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, 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 

p. 2945 
Mr. Bill Hale - Page 5 (JM-648) 

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.' 

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 g enerally . 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). 

p. 2946 
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 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 2947 

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