PJC Business

E MPLOYMENT

PJC 107.11

Impairment. A mental or physical impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body sys tems, such as neurological; musculoskeletal; special sense organs; respiratory (includ ing speech organs); cardiovascular; reproductive; digestive; genitourinary; immune; circulatory; hemic; lymphatic; skin; and endocrine; or any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. See 29 C.F.R. §1630.2(h). In rare cases— given the breadth of impairment—a jury may have to resolve a factual dispute about whether the plaintiff had an actual impairment, or a dispute about whether the employer perceived one. Burden of proof—transitory and minor. Neither the ADA nor the amendments to the Texas Labor Code cover impairments that are both minor and of short duration. See 42 U.S.C. §12102(3)(B); Tex. Lab. Code §21.002(12–a). Neither statute defines “minor,” and they differ slightly with respect to duration: under the ADA, “an actual or expected duration of 6 months or less” is “transitory” and insufficient for coverage, while under Texas law the actual or expected duration must be less than six months for the impairment to be insufficient for coverage. There is scant authority—only one case directly on point—for which party bears the burden of proof on this issue under Texas law. That case, Okpere v. National Oilwell Varco, L.P. , 524 S.W.3d 818, 835 (Tex. App.—Houston [14th Dist.] 2017, pet. denied), held the plaintiff’s burden includes showing the impairment at issue was not minor or was not transitory. Cf. Eckman v. Centennial Savings Bank , 784 S.W.2d 672, 674–75 (Tex. 1990) (exceptions to cover age under statutory provisions are affirmative defenses). Federal law places the burden on the defendant to prove an impairment’s minor and transitory nature as an affirma tive defense. See Willis v. Noble Environmental Power, LLC , 143 F. Supp. 3d 475, 484 (N.D. Tex. 2015) (citing 29 C.F.R. §1630.15(f)). The appropriate instruction should be included, depending on how the burden of proof is allocated by the court. Major life activity. The amendments to chapter 21 of the Texas Labor Code broadened the coverage for individuals with respect to “regarded as” claims. Under the previous version of the statute, plaintiffs were required to prove that the perceived impairment was one that is or would be a substantial limitation of a major life activity. The amendments dispense with this requirement.The amendments are the basis for the Committee’s suggested instructions. See Tex. Lab. Code § 21.002(12–a). Imputing bias of someone other than final decisionmaker to employer (“cat’s paw theory”). For discussion on imputation of a non-decisionmaker’s bias to the employer under the “cat’s paw theory,” please see the Comments to PJC 107.6.

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