This legislative session the Texas Legislature passed, and the Governor signed, amendments that significantly expands the scope of the Texas Commission on Human Rights Act ("Act") as it relates to individuals with disabilities.
The amendment provides that:
- The definition of "disability" is to be broadly construed to the maximum extent possible and shall include impairments that are episodic or in remission that substantially limit major life activities when active;
- Whether an impairment substantially limits a major life activity should be made without consideration of the ameliorative effects of mitigating measures;
- Being "regarded as having [a substantially limiting] impairment" does not include an impairment that is minor and is expected to last or actually lasts less than six months, regardless of whether the impairment limits or is perceived to limit a major life activity.
- No claim exists for non-disabled individuals for reverse discrimination;
- No reasonable workplace accommodation is required if the individual’s disability is based solely on being regarded as having an impairment that substantially limits a major life activity.
The new law also adds a definition of "major life activity" that was missing from the Act. Major life activity under the Act means:
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The new law becomes effective September 1, 2009 and is not retroactive to conduct occurring prior to the effective date.
What should Texas employers do to prepare for the new law? Since the Texas amendments are identical to the ADA Amendments Act of 2008 (which was effective January 1, 2009), employers that have already taken steps to comply with the federal amendments may need to do very little. For employers that have not addressed the changes made to the federal law should consider doing the following sooner rather than later:
- Review all policies and procedures to ensure that they comply with the new laws (e.g., if there were definitions or examples of major life activities, conform the definition to the amendment; if there are instructions to consider mitigating measures in determining the severity of limitations, change those provisions to conform to the law);
- Train your supervisors, human resources staff and employees responsibility for assessing requests for reasonable accommodation on the amendments;
- Update Job Descriptions to ensure that capture all of the essential elements of the relevant job;
- Focus in the interactive process –determine what the barriers are that need to be accommodated and then provide an effective accommodation that has the least adverse impact on the business.
With the state law mirroring the post-amendment ADA, there is no incentive for plaintiff-employees to file lawsuits under the ADA or in federal court as there might have been in the absence of the Texas amendments.