Chapter § 4-4 § 21.0021. Construction of Certain Definitions

• Jurisdiction: United States

4-4 § 21.0021. Construction of Certain Definitions

(a) The term "disability":

(1) shall be construed in favor of broad coverage of individuals under Sub-chapters B and C, to the maximum extent allowed under those subchapters; and,

(2) includes an impairment that is episodic or in remission that substantially limits a major life activity when active.

(b) The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, including:

(1) medication, medical supplies, medical equipment, medical appliances, prosthetic limbs and devices, hearing aids, cochlear implants and other implant-able hearing devices, mobility devices and oxygen therapy equipment;

(2) devices that magnify, enhance, or otherwise augment a visual image, other than eyeglasses and contact lenses that are intended to fully correct visual acuity or eliminate refractive error;

(3) the use of assistive technology;

(4) reasonable accommodations and auxiliary aids or services; and,

(5) learned behavioral or adaptive neurological modifications.

4-4:1 Commentary

4-4:1.1 TCHRA and the Definition of a Disability

The Texas legislation modified Chapter 21's definition of disability to align it with the ADA Amendments Act of 2008 (ADAAA), which became effective January 1, 2009.

When the ADA was enacted in the early 1990s, the legislative history envisioned 50 million Americans would be covered. To the chagrin of ADA proponents, this prediction did not materialize because of restrictive United States Supreme Court decisions, including Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) (creating an extraordinarily high bar to establish that employee qualified as disabled under the ADA), and Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (directing courts to consider, in determining disability status under the ADA, whether mitigating measures eliminate the disability; if so, no ADA protection).

But, the wheel of life turns, and the new amendments cover substantially more employees. Why? Congress explicitly stated in the amendments that the courts were devoting too much time in determining who is or is not disabled. Instead, Congress stated that should be a relatively simple determination. What employers will see are employees who file lawsuits asking courts to give them partial summary judgment—should the employer fight whether the employee is disabled—to find disability status.

Because the...