                             March 19, 1987




Mr. Bill Bale                              Opinion No. m-648
Executive Director
Texas Commission on                        Re: Certain    mental or physical
   HumanRights                             handicaps as providing standing to
P. 0.. Box 13493                           file  a complaint alleging  employ-
Austin. Texas    78711                     ment discrimination  with the Texas
                                           Commission on HumanRights

Dear Mr. Bale:

     You request clarification     of the mental or physical  handicaps
which provide    standing  to a person to file    a complaint  alleging
employment discrimination    under the Texas Commission on Human Rights
Act, codified as article   5221k, V.T.C.S.

      A person claiming        to be aggrieved      by an unlawful employment
practice     may file     a complaint     with the commission.          Art.   5221k.
16.01(a).        Article   V of     the act prohibits        specific     employment
practices      that discriminate     against   an individual     on the basis      of
race,     color,    handicap.   religion,     sex,  national     origin,     or age.
Section 2.01(7) of the act provides:

                (7)(A)    ‘Handicapped person’ means a person who
            has a mental or physical           handicap,    including
            mental retardation,     hardness of hearing, deafness,
            speech     impairment,      visual    handicap,      being
            crippled,    or any other health        impairment that
            requires   special   ambulatory devices     or services,
            as defined in Section 121.002(4),        Humen Resources
            Code, but does not include a person because he is
            addicted    to any drug or illegal         or federally
            controlled   substances or because he Is addicted to
            the use of alcohol.

               0)    ‘Handicap’ means a condition    either mental
           or physical      that   includes mental retardation,
           hardness of hearing. deafness,      speech impairment,
           visual   handicap,    being crippled,    or any other
           health impairment that requires special ambulatory
           devices     or  services,     as defined    in   Section
           121.002(4),    Human Resources Code, but does not




                                      p. 2942
Mr. Bill   Bale - Page 2        (JM-648)




            include a condition    of addiction  to any drug or
            illegal   or federally   controlled substances or a
            condition   of addiction    to the use of alcohol.
            (Emphasis added).

V.T.C.S.   art.   5221k.   §2.01(7).

       For purposes of determining standing to file a complaint alleging
employment discrimination         under the Commission on Human Rights Act,
the commission has not interpreted            a handicap to be limited     to the
mental and physical conditions         expressly enumarated in sectlon 2.01(7)
of the act.       The cosssissloo    intarprets     a mental or physical    handi-
capping condition      as a permanent condition         which may or may not be
controlled    by medication or a corrective          device and which may or may
not impair a person’s       ability   to perform a particular     job.   Under the
commission’s     interpretation,     a number of mental and physical        condi-
tions,   including chronic illnesses        and diseases,    may be covered under
the act for purposes of a person having standing to file a complaint.
We agree with the cossaission’s        interpretation.

       The domiuant consideration      in construing     a statute    is   the
legislative  intent.    Minton v. Frank, 545 S.W.2d 442, 445 (Tex. 1976);
Calvert v. British-American      Oil Producing Co., 397 S.W.Zd 839, 842
(Tex. 1965).    The intention   of the legislature    should be ascertained
from the entire act and not from isolated       portions  of the act.     City
of Eouston v. Morgan Guaranty International       Bank. 666 S.W.2d 524, 529
(Tex. App. - Eouston [lst Dist.]       1983, writ ref’d   n.r.e.).    Section
1.03 of article      5221k provides   that the act “shall        be construed
according to the fair import of its terms.”

      The usual meaninn of the words “includinn”         and “include” imulies
an incomplete      listing.      In Republic    Insu&ce      Co. v.    Silverton
Elevators,   Inc., 493 S.W.2d 748, 752 (Tex. 1973). the Supreme Court of
Texas referred     to the “well settled      rule that the ‘words ‘include,’
‘including,’    and ‘shall    include’ are generally     employed as terms of
enlargement    rather     than limitation    or restriction.”       In Peerless
Carbon Black Co. v. Sheppard, 113 S.W.2d 996, 997 (To%. Civ. App. -
Austin 1938, writ ref’d).       the court said:

           The words ‘includes’    and ‘including’    are regarded
           by the authorities     as being identical      or equi-
           valent   to   each   other:    and the      authorities
           uniformly hold that unless the context         in which
           such words are used requires,          they are never
           regarded as being identical     with or equivalent      to
           ‘mean and include,’     nor with such less elastic
           words and terms as ‘meant, ’ ‘meaning,’          or ‘by
           which is meant’. . . .        [Wlhile   the word ’in-
           cluding’   is susceptible    of different     shades of




                                       p. 2943
Mr. Bill   Bale - Page 3        (3-f-648)




            meaning, 'it     is generally     employed as a term of
            enlargement and not a term of limitation,            or of
            enumeration'.     . . .     In consequence,    it follows
            that the use of the word 'includes'         . . . instead
            of some less        elastic    word or term,      such as
            'meaning,'    'meant,'    or 'by which is meant,' would
            seem clearly      to imply that the Legislature        did
            not intend to use the word 'includes'           as one of
            limitation     or of      enumeration,   but rather     of
            enlargement, or as illustrative        of those Intended
            to be included within the taxing act.

See also    Pierce   v.   Peters,   599 S.W.2d 849.   851 (Tex.   Civ.   App. -   San
Antonio    1980,n0   wit).

       It is our opinion     that the legislature         does not intend       a
different   meaning by the use of "including"          in the definition       of
"handicapped person" and the use of "that includes"          in the definition
of "handicap."    In both definitions,     the legislature    incorporated   the
definition   used in section    121.002(4)    of the Ruman Resources Code,
which states that

            '[hlandicapped   person' means a person who has a
            mental or physical       handicap,    including  mental
            retardation,   hardness- of hearing, deafness,   speech
            impairment, visual     handicap,   being crippled.   or
            any other health impairment which requires special
            ambulatory devices or services.

Further,    the legislature       amended both definitions         in committee to
except from the definitions          of "handicapped person" and "handicap" a
oerson addicted to and a condition of addiction             to anv drug or illegal
br federally     controlled    substance or addiction      to the use-of alcohol.
In State v. Richards,         301 S.W.2d 597, 600 (Tex. 1957),            the Texas
Supreme Court stated         that "[ilt     Is a familiar       rule of statutory
construction    that au exception makes plain the intent that the statute
should apply In all cases-not excepted."            See also Providence Hospital
              611 S.W.2d 127, 133 (Tex. Civ. App. - Waco 1980, writ
             Since the legislature        specifically     exceoted   addiction    to
drugs;   controlled      substances,    and' alcohol,-   it follows     that other
conditions    are Intended to be included in the definitions             of "handi-
capped person" and "handicap."

        The construction    of a statute by the state agency charged with
its administration       is entitled   to great weight.  Heard v. City of
Dallas,     456 S.W.Zd 440. 444 (Tex. Clv. App. - Dallas        1970, writ
EiFTn.r.e.);       Armco Steel Corporation     v. Texas Employment Commis-
&,        386 S.W.2d 894 (Tex. Civ. App. - Austin 1965. writ ref'd
n.r.e.).     We conclude that the commission's interpretation  of the list




                                            p. 2944
Hr. Bill   Bale - Page 4        (JM-648)




of conditions  In section       2.01(7) of article 5221k as a partial           list   of
the conditions    covered       by the Commission on Human Rights               Act    is
proper.

      You also inquire whether the commission properly    interprets  the
Commission on Human Rights Act to allow consideration      of complaints
made by persons who may be discriminated      against because employers
perceive  them to be handicapped.    Under the comm~ssion’s interpreta-
tion’ discrimination   by an employer based on a perception      that the
person Is handicapped would be actionable   under the act regardless    of
whether the person actually   Is handicapped.    It is our opinion that
such an interpretation  is warranted by the act.

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

            [a]n employer who conducts business in this state
            may not discriminate    in his or her employment
            practices  against   a handicapped   person on the
            basis of the handicap if the person’s     ability  to
            perform the task required by a job is not impaired
            by the handicap     and the person    is   otherwise
            qualified for the job.   (Emphasis added).

Section 121.003(f)     was repealed in 1983 and replaced by the Commis-
sion on Human Rights        Act,   which prohibits      employers,     em$loyment
agencies,   and labor organizations      from discriminating       against   “an
individual    . . . because   of race,     color,   handicap,   religion,    sex,
national    origin,  or age.”     See V.T.C.S.    art.   5221k, 955.01,     5.02,
5.03.    Section 1.04(b) of theact     states:

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

To construe the Commission on Human Rights Act to deny standing to
individuals   discriminated  against on the basis    of   an employer-
perceived   handicap because the person actually   is not handicapped
would disregard the plain language of the act.   In Carter V. Gulf Oil
Corp., 699 S.W.2d 907. 910 (Tex. App. - Beaumont 1985, no writ),   the
court stated:

            Thus the old     statute     [Sec.   121.003(f).   Human
            Resources  Code]     required      a determination   of
            whether or not the plaintiff        was a ‘handicapped
            person. ’ The new statute       [Art. 5221k. V.T.C.S.1




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




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

      We conclude that the connnlssion's        interpretation,     which grants
standing to file     complaints   to individuals     discriminated    against on
the basis of an employer-perceived         handicap,   is consistent    with the
language of the act.      even if the oerson actuallv           does not have a
ha&cap.      See generally
                        .     Lunsford v. City of Bryan, 297 S.W.2d 115
(Tex. 1957) (employer discharging       employee because he thinks employee
is a member of a labor organisation,leven            when that assumption is
incorrect'  constitutes   discrimination).

       Your opinion request specifically        refers    to persons suffering
from AIDS as being covered by the act.             In School Board of Nassau
County v. Arline,      No. 85-1277 (U.S. March 3, 1987), the United States
Supreme Court held that, under a comparable federal              law, a person
suffering   from a physical impairment which substantially         limited "one
or more of her major life          activities”   could not be excluded from
coverage under the federal         act which protects       the rights    of the
handicapped,      29 U.S.C. 0794, merely because the impairment was also
contagious     --    in that   case tuberculosis.       The Court concluded,
however, that discrimination        against sufferers    of contagious   disease
may not constitute       unlawful discrimination      if the persons are not
"otherwise    qualified"   for the job because of an unreasonable risk of
contagion, based upon the reasonable medical judgment of public health
officials.     We assume similar reasoning would apply to the coverage of
the state act.*




     1. In Lunsford v. Cit of Br an. Chief Justice He&man, speaking
for the court, stated that the reason in the mind of the employer,
and not the exact status of the employee, should govern." -Id. at 117.
       2.  In American National Insurance Co. v. Fair Employment and
Eouslng Co'meission, 651 P.2d 1151 (Cal. 1982). the California                Supreme
Court, in a case where an employee had high blood pressure,                 gave the
California     Fair Employment and Eousing Act a broad interpretation,
holding that a physical handicap is any physical condition                that has a
disabling    effect    and made It clear that the California           Act Includes
both physical       conditions     that presently    disable   and conditions    that
may handicap in the future but have no present disabling                 effect.     A
recent ruling of that commission rejected                an employer's    contention
that    the commission         lacked   jurisdiction     because   AIDS does not
constitute    a physical       handicap under the California       Fair Employment
and Housing Act and found that AIDS constitutes               a physical handicap.
California    Fair-Employment and Housing Commission v. Raytheon Co., 55
LW 2449 (2124187).


                                      p. 2946
Mr.   Bill   Hale - Page 6      (JM-648)




                                     SUMMARY

                     For purposes of standing to file a complaint
              alleging     employment    discrimination        under    the
              Commission on Human Rights             Act,    codified    as
              artfcle   5221k, V.T.C.S.,    'a handicap is not limited
              to the mental and physical          conditions     expressly
              enumerated in section      2.01(7)    of the act and may
              include chronic illnesses       and contagious diseases.
              Persons discriminated       against     on the basis       of
              handicaps     perceived    by    their     employers     have
              standing to complain under the act, even if the
              person in fact is not handicapped.




                                                 Attorney   General of Texas

JACK EIGHTOWER
First   Assistant    Attorney   General

MARYKELLER
Executive Assistant       Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




                                       p. 2947
                                                                               :.
