Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Dr. Niehay

Full title: Texas Tech University Health Sciences Center - El Paso, Petitioner, v. Dr…

Court: Supreme Court of Texas

Date published: Jun 30, 2023

671 S.W.3d 929 (Tex. 2023)

Opinion

No. 22-0179

06-30-2023

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER – EL PASO, Petitioner, v. Dr. Lindsey NIEHAY, Respondent

S. Grant Dorfman, Bellaire, Judd E. Stone II, Justin Manchester, Brent Webster, Houston, Shawn Cowles, Jeffrey Edwin Farrell, Thomas Andren Albright, Ari Cuenin, Atty. Gen. W. Kenneth Paxton Jr., for Petitioner. Susan Marcus Forbes, Stewart W. Forbes, El Paso, Dorian Vandenberg-Rodes, Houston, Michael Todd Slobin, for Respondent. Daniel B. Kohrman, Brian East, Austin, William Alvarado Rivera, for Amici Curiae AARP Foundation, AARP, Disability Rights Texas. Stephen F. Fink, Bryan P. Neal, Dallas, for Amicus Curiae BNSF Railway Company. Brian East, Austin, for Amicus Curiae American Diabetes Association.

S. Grant Dorfman, Bellaire, Judd E. Stone II, Justin Manchester, Brent Webster, Houston, Shawn Cowles, Jeffrey Edwin Farrell, Thomas Andren Albright, Ari Cuenin, Atty. Gen. W. Kenneth Paxton Jr., for Petitioner.

Susan Marcus Forbes, Stewart W. Forbes, El Paso, Dorian Vandenberg-Rodes, Houston, Michael Todd Slobin, for Respondent.

Daniel B. Kohrman, Brian East, Austin, William Alvarado Rivera, for Amici Curiae AARP Foundation, AARP, Disability Rights Texas.

Stephen F. Fink, Bryan P. Neal, Dallas, for Amicus Curiae BNSF Railway Company.

Brian East, Austin, for Amicus Curiae American Diabetes Association.

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.

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.

1 Tex. Lab. Code ch. 21.

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 pounds.⁴

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).

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.

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 do invasive procedures.

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).

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."

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 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 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).

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

9 Tex. 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) ).

10 Id. (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.

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 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.

13 Tex. Lab. Code § 21.051(1).

14 Id. § 21.002(6).

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.

15 Niehay 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.

16 See id. § 21.051; see also id. § 21.002(12-a) (defining "[r]egarded as having such an impairment").

A

For regarded-as claims, the Labor Code defines "[d]isability" as "a mental or physical impairment ".¹⁷ Niehay asserts that morbid obesity is 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.

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).

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, and like the Labor Code, calls for "a physical or mental impairment".²⁰ Importantly, federal regulations at the time defined "impairment" to mean:

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.

20 42 U.S.C. § 12102 (1990).

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

21 29 C.F.R. § 1630.2 (1992) (emphasis added).

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 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.

22 See 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.

Today, the federal regulatory definition of "impairment" is not much different from its definition in 1993.²⁵ An "impairment" is

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, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) ; Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (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).

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

26 29 C.F.R. § 1630.2(h) (emphasis added).

The plain language of both the 1993 and the current definitions 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.

27 EEOC v. Watkins Motor Lines, Inc. , 463 F.3d 436, 442 (6th Cir. 2006) (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).

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 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

30 See 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 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").

31 Francis , 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.").

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 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

33 Physiology , Merriam-Webster Dictionary , https://www.merriam-webster.com/dictionary/physiology (last visited June 24, 2023).

34 641 S.W.3d at 780.

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 body system, namely, the musculoskeletal system.³⁶

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).

36 Physiology, supra note 33.

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.

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).

40 Condition , Merriam-Webster Dictionary , https://www.merriam-webster.com/dictionary/condition (last visited June 24, 2023) (emphasis added).

The dissent would apply the dictionary definition of "impairment" as a "diminishment, deterioration, or loss of function or ability" to hold 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

41 Post at 949–50 (Boyd, J., dissenting).

42 KMS Retail Rowlett, LP v. City of Rowlett , 593 S.W.3d 175, 183 (Tex. 2019) (internal quotation marks omitted).

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

43 29 C.F.R. Pt. 1630, App. at § 1630.2(h).

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 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

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.

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

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 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.").

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.

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 , 365 Mont. 359, 281 P.3d 225, 226 (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).

B

Given our conclusion that morbid obesity qualifies as an 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 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 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.

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 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.

* * * * *

We reverse the judgment of the court of appeals and dismiss the case for lack of jurisdiction.

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.

Justice Blacklock, joined by Justice Devine and Justice Young, concurring.

I agree with the Court's interpretation of Chapter 21 of the Texas Labor Code. Excessive weight is a physical characteristic, not a disability. Excessive weight may be a symptom of an underlying physiological impairment, in which case the underlying physiological impairment—not the weight itself—may qualify as a disability and thereby trigger Chapter 21's employment protections. Ante at 937–38. I write separately regarding two notable aspects of the Court's approach to interpreting the statute.

First, the Court rightly rejects calls to interpret the Labor Code's use of the words "disability" and "impairment"—or the related words "disorder" and "condition"—by consulting the evolving medical understanding of these terms.¹ As the Court observes, "[w]hether obesity is considered a disorder in the medical community says little of whether morbid obesity qualifies as an impairment under the Labor Code." Ante at 939. I would add that whether obesity is considered an impairment—or a disability, disorder, condition, or anything else—by the medical community in 2023 says nothing about whether obesity qualifies as a disability or impairment under Labor Code provisions enacted in 1993.

1 See, e.g. , Resp. Br. on the Merits, at 27 ("Texas Tech dismisses the current medical consensus as based on factors other than medical science. This Court should not so cavalierly dismiss the scientific research findings and science-based consensus of the medical community."); id. at 28 ("What is relevant is that medical science classifies obesity as a disorder."); id. at 24 ("Under current medical science, morbid obesity is an impairment. The consensus of the medical community and scientific research is that obesity is a physiological medical disorder.").

The Labor Code is a legal text, not a medical diagnostic guide. Its relevant provisions regarding disability discrimination are found in Chapter 21. The meaning of those provisions, including their use of the disputed word "impairment," must be the same today as it was in 1993, when the provisions were enacted. Like all other statutes, the meaning of this statute was fixed at the time of its enactment. See Thompson v. Tex. Dep't of Licensing & Regul. , 455 S.W.3d 569, 570 (Tex. 2014) (statutory terms have their "plain meaning as commonly understood at the time of enactment"). Unlike changes to medical diagnostic conventions, changes to statutes require the consent of the governed.

A court's job is to interpret statutory terms to "mean what they conveyed to reasonable people at the time they were written. " Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). It is therefore "a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute." New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) (internal citations omitted). Yet to call this fundamental rule a mere "canon of construction" does it a disservice. The rule that a statute's meaning is fixed at enactment is not just a tool courts employ along with various other tools for the interpretation of difficult legislative text. Instead, the rule is dictated by the very nature of statutes and their role within our constitutional order.

When the Legislature enacts a statute and the Governor does not veto it, the State has exercised its sovereign power to create new legal obligations. Often, as in Chapter 21 of the Labor Code, that power is employed to restrict liberty in the name of the public good. By ratifying the Constitution, the People of Texas—from whom all the State's sovereignty derives² —consented to restrictions on their liberty imposed by duly enacted legislation, subject to the Constitution. When we insist that statutes have only the meaning their words would have had to a reasonable citizen at the time of enactment, we are taking care to impose only those restrictions on liberty that have achieved the consent of the governed through the constitutionally prescribed process. For instance, if we insist that the Labor Code's prohibition on disability discrimination must mean today exactly what it would have meant to a reasonable citizen who carefully read its text in 1993, we give effect to the 73rd Legislature's decision to protect disabled employees without imposing additional legal obligations that would not have been within the reasonable contemplation of those in a position to influence the measure's enactment in 1993.

2 Tex. Const. art. I, § 2 ("All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.").

To lose sight of the fixed-meaning rule would be no mere linguistic or interpretive error. It would alter the role statutes play in our system of government and undermine the foundational principle that our statutory obligations have obtained the consent of the governed. Departure from the fixed-meaning rule converts the statute's imposition of a discrete legal obligation that achieved the consent of the governed at a discrete time in history into an invitation for courts and executive-branch agencies to use contemporary understandings of the statute's text to impose restrictions on liberty for which popular consent was never obtained.

If we give a statute a meaning today that we know would have been outside the contemplation of reasonable readers of its text at the time of enactment, there is no sense in which the obligations we impose in the statute's name have ever achieved the consent of the governed. That very consent, however, is what gives the statute its political legitimacy. Legislators and their constituents can only support or oppose legislation today based on what they understand its text to mean today. They can hardly be expected to anticipate how future generations of judges and bureaucrats will understand the text.

When courts or agencies treat statutes like "living" documents that evolve over time as judges’ understanding of the statutory words evolves, they replace the consent of the governed with the will of the governors. Whether dressed up in the garb of textualism or not, any approach to statutory interpretation that yields results that reasonable citizens who carefully read the text at the time of enactment would not have anticipated is not just methodologically erroneous; it is constitutionally illegitimate.

I therefore agree with the Court's refusal to consider contemporary medical understandings of how to categorize obesity, morbid or otherwise. The question is whether, in 1993, excessive weight that lacks any underlying physiological cause was within the meaning of the word "impairment" as used in the Labor Code's definition of "disability."³ The question is not what "impairment," "disability," or any other word means in today's medical parlance.

3 Even when the Legislature defines a term, such as "disability," our understanding of the definition may be informed by the common meaning of the word being defined. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 135 (Tex. 2019) ("In applying [the statutory] definition, we should not ignore altogether the common meaning of the words being defined, unless the statutory text compels otherwise."). This is especially true when the operative word in the definition—"impairment"—is no more illuminating than the word it defines—"disability."

This case turns on whether "morbid" obesity qualified as a disability when the statute was enacted. That question turns on whether it was an "impairment," which the statute does not define. As the majority opinion observes, there is no shortage of evidence from the time of the statute's enactment and shortly thereafter, including from federal cases interpreting the same language, that obesity (unless accompanied by an underlying physiological disorder) was regarded as a physical characteristic, not a "disability."⁴ * * *

4 See, e.g., Francis v. City of Meriden , 129 F.3d 281, 286 (2d Cir. 1997) ("Obesity, except in special cases where the obesity relates to a physiological disorder, is not a ‘physical impairment’ within the meaning of the statutes[.]"); Andrews v. State of Ohio , 104 F.3d 803, 810 (6th Cir. 1997) ("Because a mere physical characteristic does not, without more, equal a physiological disorder, where an employee's failure to meet the employer's job criteria is based solely on the possession of such a physical characteristic, the employee does not sufficiently allege a cause of action under these statutes. To hold otherwise would (to paraphrase the Fourth Circuit) distort the ‘concept of an impairment [which] implies a characteristic that is not commonplace’ and would thereby ‘debase [the] high purpose [of] the statutory protections available to those truly handicapped.’ "); Cook v. State of R.I., Dep't of Mental Health, Retardation, & Hosps. , 10 F.3d 17, 24 (1st Cir. 1993) (concluding that the plaintiff's morbid obesity could be considered a disability because the record showed that it was caused by an underlying physiological disorder).

Second, I agree with the Court that Texas judges interpreting Chapter 21 of the Texas Labor Code have an "independent obligation to construe Texas law" that does not "yield" to "statement[s] made by federal authorities" about federal anti-discrimination statutes. Ante at 937. The parties’ briefing, however, focuses almost entirely on federal law, and I am concerned that this Court's frequent reliance on federal law to aid its interpretation of Chapter 21 may have given the wrong impression.

The Court today helpfully clarifies that federal law only "assists" Texas courts in the discharge of our "independent obligation" to correctly interpret the text of Chapter 21. Id. Yet when all the litigants seem to be under the impression that evolving statements about federal law by federal judicial and executive-branch officials are this Court's primary touchstone for understanding the meaning of a Texas statute, something is amiss. This Court has frequently said that its interpretation of Chapter 21 should be "guided" by federal case law interpreting analogous federal statutes. See, e.g., Tex. Dep't of Transp. v. Lara , 625 S.W.3d 46, 52 (Tex. 2021). The textual basis for this approach is Chapter 21's statement of purpose: "The general purposes of this chapter are to ... provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent amendments." TEX. LAB. CODE § 21.001(3).⁵

5 See also Tex. Lab. Code § 21.001(1) (professing Chapter 21's purpose to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments").

I acknowledge the possibility that this textual purpose statement opens the door to greater consideration of federal law than would otherwise be proper when interpreting a Texas statute. And I acknowledge that there are good prudential reasons to avoid imposing two overlapping and conflicting anti-discrimination regimes on Texans. "But we have never said that the general purposes provision requires [Chapter 21] to forever remain identical to Title VII, regardless of subsequent congressional amendments to the federal act." Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 507 (Tex. 2012). "Rather, we consider the plain terms of [Chapter 21] and our precedent, and look to federal law for guidance only when the relevant provisions of Title VII are analogous." Id.

A question raised by this Court's past statements about the interplay between Chapter 21 and federal statutes is what it means to look to federal law "for guidance." Like the word "impairment," the word "guidance" has play in the joints. If it means that federal law is a guiding light to be followed as Texas courts interpret Chapter 21, then I must object. If, however, it means we are guided by helpful ideas from federal sources just as we would be guided by helpful ideas from any other knowledgeable source, such as parties or amici curiae, then I have no objection. I agree with the Court's statement today that federal sources of law "do not bind us," but instead merely "assist" us, in the discharge of our "independent obligation" to understand what a reasonable Texan who carefully read Chapter 21 at the time of its enactment would have thought it meant. Ante at 937. Courts often need assistance in understanding a statute. Naturally, we may consult the non-authoritative opinions of judges or federal agencies for assistance, just as we may consult the views of the parties or of amici curiae.

Chapter 21's legislative statement of purpose requires nothing more. See TEX. LAB. CODE § 21.001. It imposes no formal obligation on Texas courts, not even a weak one, to follow the federal judiciary's understanding of federal statutes. Nor does it require us to give evolving regulations or "guidance" issued by the Equal Employment Opportunity Commission any important role in our understanding of the state-law obligations imposed by Chapter 21. Section 21.001 ’s statement of purpose does not, even on its own terms, attempt to tie Chapter 21 to the mast of evolving federal anti-discrimination law. As with any statute, "the policies embodied in Title I of the Americans with Disabilities Act of 1990" are found in the federal statutory text. 42 U.S.C. §§ 12101, et seq. The statutory text is the policy, and the meaning of that text was fixed at its enactment. New Prime , 139 S. Ct. at 539. Later statements by federal courts or agencies cannot alter "the policies embodied in Title I" as they were understood in 1993, when section 21.001 ’s purpose clause was enacted. At most, section 21.001 expresses the Texas Legislature's general support for how the federal statutory text was understood in 1993.

That being the case, Chapter 21's statement of purpose is best viewed as the Legislature's way of saying, "We understand the text we have enacted to do essentially the same thing as what we understand the current text of 42 U.S.C. §§ 2000e, et seq. , to do." It is not the Legislature's way of saying, "Texas courts should follow developments in the interpretation of federal law by federal courts and agencies." If that were the purpose statement's import, then we should ignore it entirely. It would be an invitation to abandon our fundamental obligation to give effect to the text of Chapter 21 as it would have been understood at the time of enactment. It might even be an unconstitutional delegation of legislative authority to federal courts and agencies that are not politically accountable to the People of Texas.⁶

6 The purpose clause's reference to "subsequent amendments" is not an invitation to incorporate evolving understandings of the federal statutes into the Texas statutes. Instead, the words "and its subsequent amendments" were added by the Texas Legislature in 1995 after Congress amended the ADA. See Act of Apr. 25, 1995, 74th Leg., R.S., ch. 76, § 9.01(a), sec. 21.001, 1995 Tex. Gen. Laws 458, 621 (Texas amendment); Civil Rights Act of 1991, Pub. L. 102–166, § 12111, sec. 109(a), 105 Stat. 1071, 1077 (1991 federal amendment). The "subsequent amendments" to the federal ADA of 1990 are those that Congress had already made when the Texas Legislature added the "subsequent amendments" language in 1995. The reference in Chapter 21's purpose clause to "subsequent amendments" is therefore not a prospective endorsement by the Texas Legislature of future amendments to (or changes in the understanding of) the federal statutes. It is a retrospective approval of amendments already made by Congress to the federal statutes.

When Texas courts look to federal sources of law for assistance in understanding Chapter 21, we should take care not to give the impression that we are elevating federal law to the level of controlling authority that must be carefully parsed and assiduously followed. Federal sources of law have no formal role to play, in this case or in future cases, as this Court seeks to understand whether the various legal obligations that might be imagined to arise from Chapter 21 of the Texas Labor Code have truly achieved the consent of the governed in Texas.

* * *

Extending Chapter 21's prohibition on disability discrimination to the obese would have substantial social and economic consequences. Such a rule might render 50% of the population disabled by 2030. Zachary Ward et al., Projected U.S. State-Level Prevalence of Adult Obesity and Severe Obesity , 381 NEW ENG. J. MED. 2440, 2447 (2019). If only the "severely" obese were covered, then perhaps 25% of the population may be disabled by 2030. Id. ⁷ As the Court's opinion makes clear, the prevailing understanding to this point has been that existing disability-discrimination statutes do not extend their protections to the physical characteristic of excess weight. If the Legislature decides to extend Chapter 21's protections in this way, the courts will enforce it, subject to the Constitution. But on a matter of such "vast economic and political significance," we should expect the Legislature to "speak clearly." Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin. , ––– U.S. ––––, 142 S. Ct. 661, 665, 211 L.Ed.2d 448 (2022) (quoting Ala. Ass'n of Realtors v. Dep't of Health & Hum. Servs. , ––– U.S. ––––, 141 S. Ct. 2485, 2489, 210 L.Ed.2d 856 (2021) ).

7 The cited study defined "severe obesity" as a body-mass index (BMI) of 35 or higher. Id. BMI is a standard medical measurement that involves comparing a person's height to his weight using a surprisingly complicated formula. See Cleveland Clinic, Body Mass Index (BMI) , https://my.clevelandclinic.org/health/articles/9464-body-mass-index-bmi (last updated May 9, 2022). Definitions of "morbid obesity" appear to vary. Compare Ayse Polat et al., The effect of morbid obesity (BMI = 35 kg/m²) on functional outcome and complication rate following unicompartmental knee arthroplasty : a case-control study , J. Orthopaedic Surgery & Rsch. 1, 8 (2019) (using BMI of 35 as proxy for "morbid obesity"), with Liene Bervoets & Guy Massa, Defining morbid obesity in children based on BMI 40 at age 18 using the extended international (IOTF) cut-offs , Pediatric Obesity 94, 98 (2014) (using BMI of 40).

Chapter 21's current text does not dictate with any degree of clarity that excessive weight, on its own, qualifies as a disability. I agree with the Court that the best interpretation of the statutory text is that physical characteristics like weight are not protected. If that is to change, then the Legislature—not the courts—should say so.

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

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").

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 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 932. 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.

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.

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 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 ).

3 See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 196–97, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (narrowly construing the terms "substantially limits" and "major life activities"); Sutton v. United Air Lines, Inc. , 527 U.S. 471, 483–84, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (holding that mitigating measures may negate a "disability").

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 938–39, 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" 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 , ––– U.S. ––––, 140 S. Ct. 1202, 1204, 206 L.Ed.2d 725 (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.").

The Code, however, does not define the term "impairment." When a statute uses an undefined term, our well-established statutory-construction 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 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 ....").

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 942–43 (Blacklock, J., concurring). As these sources demonstrate, however, the common, ordinary meaning of "impairment" has not changed over time.

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 Otherwise, Texas statutes consistently use the term "impairment" to refer to a particular loss or diminishment regardless of its cause.⁷

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 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.

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 suggested that the statute requires the claimant's mental or physical loss or limitation to result from any particular cause.¹⁰

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) )).

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.

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 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 938–39.¹¹ 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. 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.

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 946–47 (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.

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 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).

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 937–38. 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."

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 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 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.

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.

In summary, applying the statute's plain language in accordance with our well-established rules of construction requires a simple, three-step 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 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 945–46 (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 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).

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

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 fair-housing requirements, as opposed to employment discrimination. See id. § 819.112.

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 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 939 (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 940 (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, 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 940. 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 940 (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. § 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 937; see also id. at 941 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 weight-related disability claims.¹⁶ Although the Court hangs its hat on the 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.

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 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)).

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 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.

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 Douglas Corp. v. Green , [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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.

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 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.

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 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.").

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 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 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.