Supreme Court of Texas
══════════
No. 22-0179
══════════
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
═══════════════════════════════════════
Argued February 21, 2023
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which
Justice Devine, Justice Blacklock, Justice Busby, Justice Bland, Justice
Huddle, and Justice Young joined.
JUSTICE BLACKLOCK filed a concurring opinion, in which Justice
Devine and Justice Young joined.
JUSTICE BOYD filed a dissenting opinion, in which Justice
Lehrmann joined.
The Texas Commission on Human Rights Act (TCHRA)1 makes it
unlawful for an employer to discriminate against an employee for being
regarded as having an impairment. The question presented in this case
is whether morbid obesity qualifies as an impairment under the TCHRA
without evidence that it is caused by an underlying physiological
disorder or condition. We hold that it does not. Accordingly, we reverse
the judgment of the court of appeals and dismiss the case for want of
jurisdiction.
I
After graduating from Texas Tech University School of Medicine
in May 2015, Dr. Lindsey Niehay, 27, began a medical residency at the
University’s emergency-medicine department in El Paso. Dr. Radosveta
Wells effectively ran the residency program under the supervision of the
chair of the emergency-medicine department, Dr. John MacKay.2
Throughout medical school and her residency, Niehay was morbidly
obese.3 During her residency, she weighed around four hundred
1 TEX. LAB. CODE ch. 21.
2 Shortly after Niehay started her residency, MacKay became chair of
the emergency-medicine department and Wells became the program director
of the department’s residency program. It was soon determined, however, that
Wells did not meet the requirements for the director position, so she was
named the “associate program director” and MacKay was named the interim
program director. Multiple people testified that MacKay served as the program
director “in name” only and that Wells continued to function as the de facto
program director.
3 Morbid or Class III obesity is defined by a body mass index over 40.
Defining Adult Overweight & Obesity, CDC, https://www.cdc.gov/obesity/
basics/adult-defining.html (last visited June 23, 2023).
2
pounds.4
Approximately five months into Niehay’s first year of residency,
concerns arose regarding her performance. One of the professors and
attending physicians, Dr. Sabrina Taylor, sent Wells an email entitled
“Problem With a Resident”. Taylor reported that she and Niehay had
performed a procedure together over the weekend and that Niehay had
“really struggled”. Taylor said that Niehay was “sweating profusely,
dyspneic5 and had to take multiple breaks because of her inability to
stand and at times bend over to gain the best access.” Taylor “blame[d]
it primarily on [Niehay’s] habitus.”6 Taylor stated that she had to
“correct [Niehay’s] technique, because she kept getting distracted by all
of the issues she was having.” She was concerned about Niehay’s ability
to perform “physically challenging procedures” and “fear[ed] it could be
problematic and quite dangerous.” Taylor noted that “[i]t certainly
doesn’t instill the greatest amount of confidence in the patients she
treats, as they see her suffer through, sweating and panting along the
way.” Taylor also reported that Niehay “seems to avoid being physically
active in the sim[ulation] lab” and that she has to be “encourage[d]” to
4 Niehay is 5’9” tall. Between 2012 and 2016, her weight steadily
increased from 294.4 to up to 400.0 pounds, and her BMI from 43.99 to 59.07.
5 Dyspneic is the adjective form of dyspnea, which is defined as “difficult
or labored respiration”. Dyspnea, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/dyspnea (last visited June 23,
2023).
6 Habitus is one’s “body build and constitution especially as related to
predisposition to disease”. Habitus, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/habitus (last visited June 23,
2023).
3
do invasive procedures.
In response, Wells solicited input from other attending physicians
regarding issues they had experienced with Niehay, and other
physicians expressed concerns. One physician found Niehay’s
motivation to be “less than optimal” and said that she was “unclear
[about] how to evaluate basic patients.” He also said that Niehay “pretty
much stated [that] she hadn’t been studying[]”, and he found that to be
“discouraging”. Another physician found Niehay’s performance during a
recent procedure to be satisfactory, “perhaps exceeding her level of
training”, but noted that her sweating could pose a patient safety issue
due to the potential for contamination of a sterile area.
Over the next several weeks, additional concerns arose. In late
December, Niehay missed her shift and instead showed up as a patient
in the emergency department where she was supposed to be working,
complaining of “really bad heart palpitations.” She failed to inform Wells
of her absence until nearly 24 hours later. In January 2016, Wells
learned that Niehay had self-prescribed a refill for her blood-pressure
medication, in violation of University policy for residents. Shortly
thereafter, Wells received an email from Dr. Adam Moore, a chief
resident, reporting that Niehay opted not to perform a procedure on one
of her patients because the proper size gown was not readily available
to her. Instead, she allowed another intern to perform the procedure.
Moore stayed an hour after his shift to assist with the procedure, but
Niehay departed. Moore was concerned that Niehay was “giving away
valuable procedures as an intern” and “not sticking around to take care
of her patient.”
4
After consulting with others, Wells recommended an emergency
meeting of the Clinical Competency Committee to consider how best to
respond to Niehay’s issues. The Committee met and recommended that
Wells place Niehay on a three-month probation with a remediation plan.
Over the next two weeks, while Wells prepared the remediation plan,
she continued to receive negative reports about Niehay’s performance.
For example, Dr. Priscilla Reyes gave Niehay low scores on an end-of-
shift evaluation and told Wells that Niehay’s “knowledge base appears
to be very much lacking.” The following week, Wells received emails
from Reyes and two senior residents, Dr. Michael Tran and Dr. Brandon
Charlton, regarding a central-line procedure that Niehay had recently
performed. Reyes reported that Niehay was not exhibiting the
appropriate level of urgency to begin the necessary, time-sensitive
procedure. Charlton relayed that she seemed inexperienced and
required some assistance during the procedure and that she became
physically ill while performing it. Tran explained that Niehay
“overheated” and noted that her reaction could be problematic in a
Level 1 trauma room.
Wells and MacKay met with Niehay at the end of January and
informed her that she would be placed on probation and under a
remediation plan. Niehay responded by requesting a one-month leave of
absence to give herself time for self-assessment and to demonstrate her
good-faith desire to address any deficiencies. MacKay and Wells agreed
to her request.
Niehay returned to her residency in March 2016. By the end of
March, however, Wells had received additional reports from a number
5
of faculty members expressing similar concerns regarding Niehay’s
performance, attendance, professionalism, and patient care. In one
incident, Niehay came into work but left within an hour with flu-like
symptoms. She asked two other residents to see her patients for her and
then departed. One of the residents who took over caring for her
patients, Dr. Erin De La Cruz, reported to Wells via email that Niehay
left unfinished notes and did not order labs for her patients, which posed
a patient safety risk because the residents were unsure how much she
had done and “something could have been missed.”
De La Cruz also reported that there were at least two occasions
in which Niehay declined to evaluate critically ill patients, creating a
patient safety risk. In the first incident, a nurse came into the lounge
and informed Niehay and De La Cruz that a patient had an elevated
heart rate and was complaining of abdominal pain. Without evaluating
the patient, Niehay instructed the nurse to give the patient fentanyl.
De La Cruz went to see the patient and found that the patient also had
rapid breathing and low oxygen levels and needed to be placed on a
ventilator. De La Cruz stated that the patient “likely would have
continued to decompensate” had she not gone to see him. In the other
incident, a nurse reported to the doctors that a patient who had recently
had surgery for a stab wound was vomiting. De La Cruz was busy and
asked Niehay to evaluate him, and Niehay responded, “Well, what am I
supposed to do about it?” After further pressure from De La Cruz,
Niehay eventually saw the patient, and it was discovered that he had a
small-bowel obstruction. De La Cruz ended her email by noting that “[i]t
has been a very frustrating month as us other interns have had to
6
shoulder a lot of the burden [Niehay] has left.”
Wells forwarded these reports to the Committee and proposed
another emergency meeting. The Committee met and recommended
that Niehay be suspended pending an investigation and evaluation of
her post-leave performance. On April 19, 2016, the Committee
recommended that Niehay be dismissed from the residency program.
MacKay agreed with the recommendation and sent a letter to Niehay on
April 25 notifying her of the recommendation. Niehay appealed, but the
University’s appeals panel upheld the recommendation and the
University president agreed, dismissing Niehay from the program in
May.
Niehay filed complaints of illegal discrimination with the Texas
Workforce Commission and the federal Equal Employment Opportunity
Commission (EEOC), both of which issued her “right to sue” letters. She
then filed this suit, complaining that the University dismissed her
because of her morbid obesity, which she asserts constitutes unlawful
discrimination because of a disability under the TCHRA.7 The
University filed a combined plea to the jurisdiction and summary-
judgment motion, arguing that the Labor Code does not waive its
sovereign immunity because Niehay presented no evidence to support
her claim. The trial court denied the plea and motion. In a per curiam
opinion, the court of appeals affirmed.8 We granted the University’s
petition for review.
7 See TEX. LAB. CODE § 21.051.
8 641 S.W.3d 761 (Tex. App.—El Paso 2022).
7
II
Because the University is a state institution, sovereign immunity
protects it from suit or liability unless the Legislature has expressly
waived that immunity.9 The TCHRA waives sovereign immunity, “but
only if the plaintiff alleges facts that would establish that the state
agency violated the Act and, when challenged with contrary evidence,
provides evidence that is at least sufficient to create a genuine fact issue
material to that allegation.”10 In determining whether Niehay has met
this burden, “we must assume that all evidence supporting [her]
allegations is true, and we must resolve all doubts and make all
reasonable inferences in [her] favor.”11 “By intertwining the TCHRA’s
immunity waiver with the merits of a statutory claim, the Legislature
ensures public funds are not expended defending claims lacking
sufficient evidence to allow reasonable jurors to find the governmental
entity liable.”12
The TCHRA, which is codified in relevant part in Chapter 21 of
the Labor Code, makes it unlawful for an employer to discharge an
individual because of the individual’s disability.13 A “disability” is
9Tex. Tech Univ. Health Scis. Ctr.–El Paso v. Flores, 612 S.W.3d 299,
305 (Tex. 2020) (citing Univ. of Tex. Health Sci. Ctr. at Hous. v. Rios, 542
S.W.3d 530, 532 n.4 (Tex. 2017)).
10Id. (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,
770-771 (Tex. 2018)); see also Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52
(Tex. 2021).
11 Flores, 612 S.W.3d at 305; see also Lara, 625 S.W.3d at 52.
12 Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 763.
13 TEX. LAB. CODE § 21.051(1).
8
defined as (1) “a mental or physical impairment that substantially limits
at least one major life activity of that individual”; (2) “a record of such
an impairment”; or (3) “being regarded as having such an
impairment.”14 Accordingly, to bring a disability-discrimination claim
under the TCHRA, a plaintiff can assert that she actually had an
impairment and was discriminated against because of that impairment,
or she can allege that her employer “regarded” her as having an
impairment—whether or not she did—and discriminated against her
because of that perceived impairment.
Niehay asserts only a “regarded as” claim.15 She must show that
she was perceived as having an impairment and was terminated based
on that perception.16 The University argues that Niehay cannot show
that she was regarded as having an impairment and that, therefore, she
cannot show a disability as defined by the Labor Code. We agree, and
accordingly conclude that the University is immune from suit.
A
For regarded-as claims, the Labor Code defines “[d]isability” as “a
mental or physical impairment”.17 Niehay asserts that morbid obesity is
14 Id. § 21.002(6).
15Niehay initially brought both an “actual” disability claim and a
“regarded as” claim. However, she has abandoned the actual disability claim
on appeal and proceeds only with her regarded-as claim.
16See id. § 21.051; see also id. § 21.002(12-a) (defining “[r]egarded as
having such an impairment”).
17 Id. § 21.002(6) (emphasis added). For regarded-as claims, one need
not present evidence that the impairment “substantially limits at least one
major life activity”, as required for actual disability claims. Id. § 21.002(12-a).
9
a physical impairment in and of itself and that because the University
regarded her as being morbidly obese, she established that the
University regarded her as having an impairment. The University
argues that morbid obesity, standing alone, is not an impairment.
Specifically, the University contends that morbid obesity can qualify as
an impairment only if it is caused by or results from an underlying
physiological disorder, rather than by lifestyle choices. The University
further contends that because Niehay failed to present any evidence
that her morbid obesity is the result of a physiological disorder or that
the University perceived it as such, she cannot show that the University
regarded her as having an impairment. Thus, the ultimate question
before us is a legal one: whether morbid obesity qualifies as an
impairment under the Labor Code without evidence that it is caused by
an underlying physiological disorder or condition.
1
To resolve this issue, we look first to the TCHRA itself. The Labor
Code does not define impairment. However, “[i]n 1993, the Legislature
amended the [TCHRA] to bring it into compliance with . . . the
Americans with Disabilities Act. The enactment modified the definition
of ‘disability’ contained in the [T]CHRA to conform it with the ADA
definition.”18 In so doing, “the Legislature . . . fully incorporated the
ADA definition of the term ‘disability’ into chapter 21.”19 The definition
of “disability” under the ADA then is essentially the same as it is today,
18 Little v. Tex. Dep’t of Crim. Just., 148 S.W.3d 374, 377 (Tex. 2004)
(internal quotation marks omitted).
19 Id. at 382.
10
and like the Labor Code, calls for “a physical or mental impairment”.20
Importantly, federal regulations at the time defined “impairment” to
mean:
Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological, musculoskeletal,
special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine[.]21
Thus, we can presume that the Legislature was aware of this regulatory
interpretation and was accepting of that meaning of “impairment” when
it adopted the ADA definition of “disability”.22
Additionally, one of the TCHRA’s express purposes is to “provide
for the execution of the policies embodied in Title I of the [ADA] and its
subsequent amendments (42 U.S.C. Section 12101 et seq.)”.23
Accordingly, we have previously stated that “our interpretation of the
definition of ‘disability’ contained in chapter 21” is guided by “both the
federal court decisions interpreting the ADA and the federal
administrative regulations regarding the ADA”.24 The statutory
20 42 U.S.C. § 12102 (1990).
21 29 C.F.R. § 1630.2 (1992) (emphasis added).
22See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 360 (Tex.
2000) (plurality op.) (“When the Legislature adopts a federal statute, we
presume that it knew of the federal court’s construction of the federal statute
when it adopted the statute and intended to adopt that construction.”); see also
Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is
presumed to have been enacted by the legislature with complete knowledge of
the existing law and with reference to it.”).
23 TEX. LAB. CODE § 21.001(3).
24 Little, 148 S.W.3d at 382.
11
objective of maximizing consistency in federal and state law does not
mean that the content of Texas law must yield to any statement made
by federal authorities, of course. On the contrary, those authorities
sometimes disagree with each other even as to federal law, and even
when they align, the text of the TCHRA and precedents interpreting it
may foreclose federal–state synchronization. But such consistency is
desirable, and while federal authorities do not bind us, they frequently
assist us in our independent obligation to construe Texas law.
Today, the federal regulatory definition of “impairment” is not
much different from its definition in 1993.25 An “impairment” is
Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genitourinary,
immune, circulatory, hemic, lymphatic, skin, and
endocrine[.]26
The plain language of both the 1993 and the current definitions
25 Congress amended the ADA in 2008 in direct response to a pair of
U.S. Supreme Court cases “that too narrowly interpreted when an impairment
‘substantially limits a major life activity’”. Morriss v. BNSF Ry. Co., 817 F.3d
1104, 1110 (8th Cir. 2016); see Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). One of
the express purposes of the amendments was “to express Congress’ expectation
that the [EEOC] will revise that portion of its current regulations that defines
the term ‘substantially limits’”. ADA Amendments Act of 2008, Pub. L. 110-
325, § 2, 122 Stat. 3553, 3554; see also 76 Fed. Reg. 16978, 17004 (March 25,
2011). Notably, Congress expressed no disagreement with the regulatory
definition of “impairment” and, in fact, expected that it would remain the same.
See 76 Fed. Reg. at 17006-17007. The EEOC made only minor changes to the
definition in 2011. See 29 C.F.R. § 1630.2(h).
26 29 C.F.R. § 1630.2(h) (emphasis added).
12
of impairment requires a physiological disorder or condition to find an
impairment. But one’s weight, even well outside the normal range, is
not a physiological disorder or condition; it is a physical characteristic.
“[A] mere physical characteristic does not, without more, equal a
physiological disorder.”27 Accordingly, a plaintiff must be able to point
to a physiological disorder or condition that causes one’s weight to show
an impairment.28 Moreover, the parties appear to agree that obesity, as
opposed to morbid obesity, is not an impairment absent evidence of an
underlying physiological disorder or condition.29 It would make little
sense to require an underlying physiological disorder or condition for a
BMI of 39, but not to require one for a BMI of 40.
Our interpretation of the term impairment is consistent with the
federal circuit courts that have addressed this issue. The United States
Courts of Appeals for the Sixth, Seventh, and Eighth Circuits have also
concluded that the plain language of the EEOC regulation compels the
determination that morbid obesity must stem from a physiological
disorder or condition to qualify as an impairment for regarded-as
claims.30 The Second Circuit likewise held that a physiological disorder
EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 442 (6th Cir. 2006)
27
(emphasis omitted) (quoting Andrews v. Ohio, 104 F.3d 803, 810 (6th Cir.
1997)).
28 See id. at 443.
29 See Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997)
(holding, in a regarded-as claim under the ADA, that obesity is not a physical
impairment unless it relates to physiological disorder).
30See Watkins Motor Lines, 463 F.3d at 443 (“[C]onsistent with the
EEOC’s own definition, we hold that to constitute an ADA impairment, a
person’s obesity, even morbid obesity, must be the result of a physiological
13
is required to show an impairment based on the regulatory definition in
a case involving obesity (not morbid obesity).31 These federal decisions
are of great use to us in understanding what constitutes a disability-
qualifying impairment, especially since Texas jurisprudence includes so
few cases that involve morbid obesity.32
Niehay points to the fact that the medical community considers
obesity to be a medical disorder to argue that morbid obesity is a
physiological disorder or condition in and of itself. She also relies on the
dictionary definition of “physiology” as “the organic processes and
phenomena of an organism or any of its parts or of a particular bodily
condition.”); Richardson v. Chi. Transit Auth., 926 F.3d 881, 888 (7th Cir. 2019)
(“Without evidence that Richardson’s extreme obesity was caused by a
physiological disorder or condition, his obesity is not a physical impairment
under the plain language of the EEOC regulation.”); Morriss, 817 F.3d at 1108
(holding, in a case involving morbid obesity, that “[u]nder the plain language
of this definition, obesity is not a physical impairment unless it is a
physiological disorder or condition and it affects a major body system”).
31Francis, 129 F.3d at 286. In Francis, the court noted that “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” and cited a
case from the First Circuit. Id. In the First Circuit case, however, the plaintiff
presented expert testimony that her morbid obesity was the result of a
physiological disorder—metabolic dysfunction—and the court ultimately
affirmed a judgment in her favor. See Cook v. R.I., Dep’t of Mental Health,
Retardation, & Hosps., 10 F.3d 17, 23-24 (1st Cir. 1993). Thus, the issue before
us was not implicated.
32 See Brief on the Merits for Respondent, at 46 (“Thirty years after the
passage of the ADA, and thirteen years after the passage of the ADA
Amendments Act, which greatly expanded the protections of the ADA and
Chapter 21, the instant case is only the third reported morbid-obesity case in
the state courts of Texas.”).
14
process”.33 Specifically, she argues that morbid obesity—which she
describes as the excessive accumulation of fat cells—is an organic
process and phenomenon of an organism and therefore qualifies as a
physiological disorder or condition. She also argues that it affects
several of her body systems, including her musculoskeletal, respiratory,
and cardiovascular systems. Therefore, she claims, morbid obesity is a
physiological disorder or condition that affects multiple body systems,
meeting the definition of impairment. The court of appeals rested its
holding on this interpretation of the regulatory text as well.34
Our task is one of statutory interpretation. Whether obesity is
considered a disorder in the medical community says little of whether
morbid obesity qualifies as an impairment under the Labor Code.35
Moreover, Niehay’s interpretation is untenable. The dictionary-
definition reading that Niehay advances would mean that even normal
bodily functions could be considered a disability. A person who lifts
weights regularly accumulates muscle mass, which is a normal bodily
response and process. But the accumulation of muscle mass is also an
“organic process[] and phenomen[on] of an organism”, and it affects a
33Physiology, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/physiology (last visited June 24, 2023).
34 641 S.W.3d at 780.
35 See Richardson, 926 F.3d at 891 (“This argument [that the medical
community considers obesity to be a disease] is not persuasive. The ADA is an
antidiscrimination—not a public health—statute, and Congress’s desires as it
relates to the ADA do not necessarily align with those of the medical
community.”); cf. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 616
S.W.3d 558, 570-571 (Tex. 2021) (determining whether an agency rule
contravenes a statute involves legal analysis of the statutory text and purpose,
not weighing evidence from the healthcare community).
15
body system, namely, the musculoskeletal system.36
Reading the regulation as a whole and in context shows that a
“physiological disorder or condition” means an abnormal bodily function
or state.37 It is listed alongside “cosmetic disfigurement” and
“anatomical loss”.38 Indeed, the dictionary definition of “disorder” is “an
abnormal physical or mental condition”,39 and “condition” is defined as,
among other things, “a usually defective state of health”.40 But the
accumulation of fat cells is a normal bodily process, so asserting that one
is overweight is insufficient by itself to show a physiological disorder or
condition. A person’s morbid obesity could be her body’s normal and
natural response to the person’s lifestyle choices or eating habits. To
show a physiological disorder or condition, Niehay would need to show
that her body’s process of accumulating fat cells is somehow abnormal.
In other words, to show an impairment, Niehay would need to show that
her morbid obesity is due to a physiological disease or condition.
The dissent would apply the dictionary definition of “impairment”
as a “diminishment, deterioration, or loss of function or ability” to hold
36 Physiology, supra note 33.
37 See Tex. Bd. of Chiropractic Exam’rs, 616 S.W.3d at 569 (noting that
“context is fundamental to understanding the use of language” and one should
not draw meaning “from isolated words or phrases” (quotation omitted)).
38 29 C.F.R. § 1630.2(h).
39 Disorder, Merriam-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/disorder (last visited June 24, 2023) (emphasis added).
40Condition, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/condition (last visited June 24, 2023) (emphasis
added).
16
that morbid obesity qualifies as such.41 But we apply the common
meaning of the words of a statute “unless a different meaning is
apparent from the context or the plain meaning leads to absurd or
nonsensical results.”42 Here, the words arise within the context of a
statutory scheme prohibiting disability discrimination in employment,
our understanding of which is guided by extensive rules and regulations
under Texas and federal law, including one that defines the very term
we seek to interpret and that the Legislature has impliedly accepted.
2
In addition to the regulatory definition of “impairment”, EEOC
Interpretive Guidance on Title I of the ADA also supports that morbid
obesity is not an impairment without an underlying physiological
disorder or condition. It states:
The 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. The definition, likewise, does not
include characteristic predisposition to illness or disease.
Other conditions, such as pregnancy, that are not the
result of a physiological disorder are also not
impairments.43
Niehay reads this to mean that for weight to be an impairment “it
must either be outside normal range or the result of a physiological
disorder.” But “a more natural reading of the interpretive guidance” is
41 Post at 5-7 (Boyd, J., dissenting).
42 KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 183 (Tex.
2019) (internal quotation marks omitted).
43 29 C.F.R. Pt. 1630, App. at § 1630.2(h).
17
that weight is an impairment “only if it falls outside the normal range
and it occurs as the result of a physiological disorder. Both requirements
must be satisfied”.44 When changing the sentence to be a statement in
the affirmative, its meaning becomes quite clear: the definition of the
term “impairment” includes physical characteristics such as weight that
are not within “normal” range and are the result of a physiological
disorder. This interpretation is further supported by the statement in
the interpretive guidance that “[o]ther conditions, such as pregnancy,
that are not the result of a physiological disorder are also not
impairments.”45 In other words, conditions and physical characteristics
must be the result of a physiological disorder to be considered an
impairment.46
Were Niehay’s reading to be adopted, it would mean 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.”47 That would be
“inconsistent with the [TCHRA]’s text and purpose” and would
transform the regarded-as claim into “a catch-all cause of action for
discrimination based on appearance, size, and any number of other
things far removed from the reasons the [TCHRA] was passed.”48
44 Morriss, 817 F.3d at 1108; see also Richardson, 926 F.3d at 890.
45 29 C.F.R. Pt. 1630, App. at § 1630.2(h).
46 Morriss, 817 F.3d at 1108-1109.
47 Richardson, 926 F.3d at 890.
48 Id. (quoting Watkins Motor Lines, 463 F.3d at 443) (alteration
omitted); see also Watkins Motor Lines, 463 F.3d at 443 (“We decline to extend
18
The question whether morbid obesity qualifies as an impairment
without evidence of an underlying physiological disorder or condition
has split lower courts.49 However, based on the foregoing analysis and
considering uniform federal circuit court precedent, particularly in light
of the TCHRA’s express purpose to “provide for the execution of the
policies” of the ADA,50 we conclude that morbid obesity does not qualify
as an impairment under the Labor Code absent an underlying
physiological disorder or condition.
B
Given our conclusion that morbid obesity qualifies as an
ADA protection to all ‘abnormal’ (whatever that term may mean) physical
characteristics.”).
In litigation before the Ninth Circuit, the EEOC as amicus curiae took
the position that weight “may be an impairment when it is either outside the
‘normal’ range or occurs as the result of a physiological disorder”, consistent
with Niehay’s argument before us. Taylor v. Burlington N. R.R. Holdings Inc.,
904 F.3d 846, 851 (9th Cir. 2018) (emphasis added). However, this
interpretation is inconsistent with the regulatory definition and the
interpretive guidance, and we do not consider it persuasive. Cf. Morriss, 817
F.3d at 1111 n.4 (8th Cir. 2016) (“The [EEOC] has not modified its regulations
or interpretive guidance construing [physical impairment], . . . and its
contradictory position in this litigation thus is not entitled to deference.”).
49 See Richardson, 926 F.3d at 887 (listing cases). The Montana
Supreme Court has also addressed this issue as it relates to the Montana
Human Rights Act, which is analogous to the ADA. It concluded that obesity
qualifies as an impairment without a showing of an underlying physiological
disorder or condition. See BNSF Ry. Co. v. Feit, 281 P.3d 225, 226 (Mont. 2012).
At the time of Montana’s holding, only the Second and Sixth Circuits had
addressed the issue. Since then, the Seventh and Eighth Circuits have also
held that morbid obesity must be caused by an underlying physiological
disorder or condition to qualify as an impairment, resulting in a greater
consensus among federal circuit courts.
50 TEX. LAB. CODE § 21.001(3).
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impairment under the Labor Code only when caused by a physiological
disorder or condition, for a claim that a plaintiff was “regarded as”
having an impairment due to her morbid obesity, one would need to
present evidence that her morbid obesity was caused by an underlying
physiological disorder or condition or that her employer regarded her
morbid obesity as being caused by an underlying physiological disorder
or condition. Niehay has presented evidence of neither, so her claim
necessarily fails.
Niehay herself does not contend that there is evidence her morbid
obesity resulted from a physiological disorder or that that was the
University’s perception. She testified in her deposition, “we don’t
actually know the specific causes for each individual’s obesity. It’s a big
area of research. And so lifestyle factors, medical factors can all
contribute.” If Niehay, a physician, does not herself regard her morbid
obesity as being caused by a physiological disorder, it seems implausible
to think any of the other physicians with whom she worked did.
Unsurprisingly, there is no evidence their perceptions differed from
hers.
To be sure, there is evidence that some of Niehay’s problems with
her work performance were perceived to be related to her weight and
health. One physician reported that Niehay really struggled during a
procedure they performed together and that she was sweating profusely,
had difficulty breathing, and had to take multiple breaks because of her
inability to stand and bend over to access the patient. She blamed
Niehay’s struggles on her “habitus,” meaning her physical size,
structure, or state. Other physicians noted her sweating during
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procedures as well. One physician reported that she overheated and
became physically ill after a procedure. One physician told another that
Niehay’s issues were largely due to her health state. Another wondered
if Niehay’s problems were health related. Another wished Niehay
success in dealing with her health issues.
This is all evidence that Niehay’s work issues were due to her size
and accompanying health issues—sweating, breathing difficulties, and
stamina. But none of that is evidence of Niehay’s regarded-as claim. The
missing piece is any evidence or inference that Niehay’s coworkers
regarded her obesity as being caused by health issues—a physiological
disorder not apparent to an observer—rather than causing health
issues, which was obvious. In short, Niehay has not made the requisite
evidentiary showing.
In sum, for a claim of disability discrimination under the TCHRA
based on an allegation that the employer regarded an individual as
morbidly obese, morbid obesity is not an impairment under the Labor
Code absent evidence that it results from a physiological disorder or
condition. There is no evidence or inference that Niehay’s morbid obesity
was caused by a physiological disorder, and Niehay makes no argument
to the contrary. Thus, she cannot establish that Texas Tech regarded
her as having an impairment, and she has not shown a disability as
defined in the Labor Code. Her claim must be dismissed for want of
jurisdiction.51 Because we hold that Niehay cannot show that the
51 Niehay asserts that if we were to reverse the court of appeals’
judgment, we should remand for consideration of whether the trial court
abused its discretion in excluding Niehay’s physician’s statement from
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University regarded her as having an impairment, we need not address
whether Texas Tech dismissed her “because of” the perceived
impairment and the accompanying evidentiary issue regarding the
disclosure of attorney–client privileged communications.
* * * * *
We reverse the judgment of the court of appeals and dismiss the
case for lack of jurisdiction.
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: June 30, 2023
evidence. However, remand is unnecessary because even assuming arguendo
that the trial court abused its discretion, the physician’s statement does not
say that Niehay’s morbid obesity is caused by a physiological disorder or
condition. It simply says that she has been diagnosed with morbid obesity and
other health issues and that her morbid obesity affects various of her body
systems. In other words, admission of the physician’s statement would not
preclude dismissal.
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