I had already gone through two drafts of putting this blog entry together when I saw that the United States Supreme Court came down with it decision in Cummings (we discussed the oral argument here). One thing Cummings shows me is that predicting the Supreme Court result from the oral argument is a fools errand. I will try to remember that the next time. The case will be my very next blog. In short, the majority opinion decides that emotional distress damages are simply not a part of the traditional calculus of contract damages and therefore, are not available under the Rehabilitation Act of 1973 as well as the Affordable Care Act. More on this next week or if I can swing it, later this week.


Today’s blog entry gets its origins from both a case in my pipeline and from me finishing a chapter on disability discrimination that will appear in the Rutter Group Federal Employment Law Litigation treatise later this year. So, the blog entry discusses two different concepts. First, does proving up a substantial limitation on the major life activity of working, which has customarily meant having to show that the plaintiff cannot do a broad range of jobs, survive the ADAAA? Second, does morbid obesity require an underlying physiological condition when claiming disability discrimination. As usual, the blog entry is divided into categories and they are: working at the major life activities; does morbid obesity require an underlying physiological condition in order to be considered a disability; Texas Tech University Health Sciences Center-El Paso v. Dr. Niehay facts; court’s reasoning that morbid obesity qualifies as an impairment in a regarded as claim even without evidence of an underlying physiological cause; court’s reasoning on the applicability of the catspaw theory; court’s reasoning that the lower court did not err in considering Texas Tech’s own personnel statements about what happened when the interim program director consulted Texas Tech University legal counsel; court’s reasoning that direct evidence existed; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Working as the Major Life Activity


In Sutton v. United Airlines the Supreme Court held that mitigating measures should be considered when deciding whether a person had a disability. That particular holding was overruled by the amendments to the ADA, the ADAAA. Sutton also said that to be substantially limited in the major life activity of working that you had to look at whether the individual could do a broad class of jobs. The question is whether after the amendments to the ADA does that principle still survive? The answer is confusing, especially if you do Boolean searching in a legal database as that will likely lead you one way that may not be accurate. What you do have to do is start with the case of Booth v. Nissan North America, 927 F.3d 387, 394 (6th Cir. 2019). Then, cite check, Sheppardize, or whatever you like to call it the section of Booth talking about how proving up working as the major life activity follows Sutton even after the ADAAA. When you do that, you find out that the EEOC also agrees that the analysis of the major life activity of working being substantially limited, which focuses on whether the individual can do a broad class of jobs, still survives even after the amendments to the ADA. See, EEOC Interpretive Guidance of title 1 of the ADA at 1630.2(j)(5) and (6). So, you have both case law as well as guidance from the EEOC itself talking about how the broad class of jobs is still the rule with respect to figuring out whether working as the major life activity is substantially limited. As such, if you are on the plaintiff side you definitely want to avoid alleging working as the major life activity if at all possible, a point which the EEOC makes in its guidance as well. If you do allege working as the major life activity and you do not have to, one wonders whether that wouldn’t give rise to a legal malpractice claim, and we discussed that possibility here.



Does Morbid Obesity Require an Underlying Physiological Condition in Order to Be Considered a Disability


The answer to this question entirely depends upon the jurisdiction you were in. At the federal level, the trend is very clear that morbid obesity requires an underlying physiological impairment in order to proceed with a disability discrimination claim. See here for example. However, many states have their own disability nondiscrimination laws and they are not necessarily tracking the federal trend. For example, we previously discussed how Washington has decided that morbid obesity is always a disability under Washington Law Against Discrimination. Recently, Texas has decided that under their disability nondiscrimination law, the Texas Commission on Human Rights Act law that morbid obesity does not require an underlying physiological impairment in a regarded as claim situation. Let’s take a look at the Texas decision, Texas Tech University Health Science Center-El Paso v. Dr. Niehay, here, decided on January 31, 2022, by the Court of Appeals of Texas.




Texas Tech University Health Science Center-El Paso v. Dr. Niehay Facts


The facts of this case are quite egregious and can be found in great detail in the opinion. Basically, you have a resident that weighed over 400 pounds. The program where she was doing a residency at did not appreciate that. She had a particular problem with the person who ran the residency program, an interim director. At one point, the interim director actually went into the University legal counsel’s office to figure out whether she could terminate the resident because of the plaintiff’s weight. The lawyer for the school said that she could not terminate based upon that reason because it would be discrimination. After hearing that, she repeated to the attorney that she believed that the resident was not performing well because of her weight and that she needed to find another reason to terminate her from the program. The University did not take steps to protect the information from when the program director consulted legal counsel when it was revealed what the nature of that conversation was at the program director’s deposition.



Court’s Reasoning that Morbid Obesity Qualifies as an Impairment in a Regarded As Claim Even without Evidence of an Underlying Physiological Cause


  1. No dispute exists that plaintiff was morbidly obese.
  2. No dispute exists that her condition was transitory or minor.
  3. The Texas Commission on Human Rights Act defines a disability as a mental or physical impairment or being regarded as having such an impairment. Texas Labor Code Annotated §21.002(6).
  4. The Code of Federal Regulations as promulgated by the EEOC provided significant guidance to the interpretation of the Texas Commission on Human Rights Act.
  5. The relevant provisions in the Code of Federal Regulations define a physical or mental impairment as any physiological disorder or condition affecting one or more body systems. Those body systems might include the neurological, musculoskeletal, respiratory, cardiovascular, digestive, genitourinary, immune, circulatory, humic, lymphatic, skin, or endocrine system. 29 C.F.R. §1630.2(h)(1).
  6. While physiological disorder and physiological condition are not defined by the C.F.R., when the statute uses an undefined word, a court should apply the word’s common ordinary meaning.
  7. Webster’s defines physiology as the organic processes and phenomena of an organism or any of its parts of a particular bodily process.
  8. The word “condition,” when referring to a physical state includes, “a mode or state of being… proper or good condition (as for work or sports competition)… the physical status of the body as a whole… [Usually] used to indicate abnormality.” Morbid obesity meets these definitions.
  9. The Texas Court of Appeals cites to the Washington case that we discussed here.
  10. Plaintiff testified at her deposition that her morbid obesity is a contributing factor to cardiac issues and is also associated with metabolic syndrome, which includes hormonal imbalances, insulin resistance, and the potential to develop type II diabetes. She also testified that can affect activities such as walking, running, climbing, breathing and muscle function. Plaintiff and Amicus also directed the court to secondary medical authority viewing morbid obesity as a physiological disorder or disease without regard to its cause.
  11. Another Texas Court of Appeals has previously stated that obesity can be properly classified as a disability when it substantially affects the body system.
  12. In a regarded as claim, the plaintiff need not actually have the perceived impairment, rather plaintiff only needs to be regarded, whether it be correctly or incorrectly, as having it by the employer. It is illogical to suggest that a plaintiff must establish that the imagined impairment they are regarded as having by their employer-but don’t actually have-is also regarded by the employer as being caused by an imagined underlying physiological cause that they likewise don’t have. There is also no basis or authority for imposing that requirement on a portion of regarded as cases (where the plaintiff is shown to actually have the perceived impairment), but not others (where she isn’t).
  13. Texas Tech’s interpretation of the law makes no sense for another reason as well. That is, even if the employer did fabricate and imagine cause for the impairment that the person did not have, the specific cause they imagined would determine whether liability existed or not. For example, an employer deciding the employee was morbidly obese for psychological reasons could never be held liable for terminating the employee on that basis. Yet an employer who viewed the employee had being morbidly obese through no fault of their own-for physiological reason-would be subject to potential Texas Commission on Human Rights Act liability.
  14. The decision is limited to regarded as claims.
  15. It is possible that the defense may still prevail on the merits. For example, it might be able to show that the plaintiff was not qualified, especially since a person with a regarded as claim is not entitled to reasonable accommodations under the ADA as amended.



Court’s Reasoning on the Applicability of the Catspaw Theory


  1. Under the catspaw theory, a plaintiff need not show that the final, official decision-maker harbored a discriminatory animus toward her. Instead, the plaintiff may present evidence that a subordinate employee harbored such intent, and that the subordinate employee’s efforts led to a recommendation for termination, which the final decision-maker effectively rubber stamped. That is, federal courts will not blindly accept the titular decision-maker at the true decision-maker. Rather the question is whether the worker possess leverage, or exerted influence over the titular decision-maker.
  2. Another way to look at it is if a supervisor performs an act motivated by unlawful animus intended by the supervisor to cause an adverse employment action and that act as a proximate cause of the ultimate employment action, then the employer is liable.
  3. Some evidence existed that the interim program director was fulfilling the role of program director at the time of the disciplinary hearings. The interim program director testified at her deposition that she retained a function of program director, i.e. responsible for supervision of the program. She also reiterated that in her CV attached to her deposition. Finally, another physician who became a faculty member at the tail end of plaintiff’s disciplinary proceedings testified in his deposition that it was his understanding that the interim program director had been performing most of the duties of program director while another person served at the name director before his arrival.
  4. In a footnote, the court noted that the interim program director made corrections to her deposition testimony with her actual deposition testimony. If nothing else, that created the question of fact regarding the role she actually performed at the time of plaintiff’s termination.
  5. Evidence also existed that the interim program director used her position to initiate and pursue disciplinary proceedings against the plaintiff with limited supervision or input from the named program director. More particularly, without first consulting with the named program director, the interim director: 1) initiated an investigation into plaintiff’s performance; met with legal counsel; 2) sought advice on what disciplinary steps she should take; 3) called emergency meeting to discuss plaintiff’s performance; and 4) took the lead role in gathering and presenting information regarding plaintiff’s performance. She also sent emails outlining several new complaints about the plaintiff and advocated for urgent action. In the responses to those emails, several members of the disciplinary committee, advocated for plaintiff’s immediate suspension or termination based in part upon the information supplied by the interim program director.
  6. The named program director testified that he conducted no independent investigation to verify the information presented to him by the interim program director before recommending plaintiff’s termination. He also testified that had he been in charge of the disciplinary proceedings, he would have conducted an independent investigation into the claims against the plaintiff for reporting the matter onto the disciplinary committee.
  7. It was the interim program director that took the lead role in summarizing the evidence leading to the recommendation to terminate the plaintiff.
  8. No evidence existed that an independent investigation was launched before upholding the termination recommendation.



Court’s Reasoning That the Lower Court Did Not Err in Considering Texas Tech’s Personnel Statements about What Happened When the Interim Program Director Consulted Texas Tech University Counsel


  1. A Yolanda Salas was present in the room when the interim program director met with Texas Tech University legal counsel, Frank Gonzalez, about the plaintiff’s situation.
  2. At that meeting, Salas said the following transpired:


Gonzalez advised Dr. Wells that “she had to find specific reasons why she wasn’t performing well to dismiss her,” and that Gonzalez advised Dr. Wells that she could not “use her weight as a reason to dismiss her.” He also reportedly advised Dr. Wells that there had to be other reasons to dismiss Dr. Niehay. Salas also testified that during the meeting, Gonzalez repeatedly cautioned Dr. Wells to be “careful how she handled this [and] that she couldn’t mention anything about her weight.” Dr. Wells agreed with Gonzalez that she could not mention Dr. Niehay’s weight, and then asked him how she could “word it,” apparently referring to her initiation of disciplinary proceedings, to instead “show” that Dr. Niehay was not performing well. And, Salas testified that Dr. Wells informed her after the meeting that she believed Dr. Niehay “wasn’t performing well because of her weight and that–but that she had to find a way to–find other reasons other than that” to terminate her. Salas expressed her belief that Dr. Wells was determined to find other reasons to dismiss Dr. Niehay, in order “to 20 As a predicate to this question, Dr. Niehay’s counsel first asked what Salas had told Dr. Niehay about what attorney Gonzalez had said. Texas Tech’s counsel then stated, “Objection, privileged.” The witness then asked that the question be repeated, and the counsel then asked a somewhat different question–whether a specific statement was made by attorney Gonzalez, to which no objection was made. 41 go around the weight issue” and that she later contacted various other faculty members, “just looking for a reason to dismiss her.”


  1. The parties agree that the communication between the interim program director and Frank Gonzalez were covered by the attorney-client privilege.
  2. The attorney-client privilege is waived when the holder of the privilege voluntarily discloses the privileged material to a third party.
  3. Salas, who was not a management level employee within the agency, lacked the independent authority to waive the privilege on Texas Tech’s behalf.
  4. The attorney-client privilege can also be lost during discovery proceedings when the party holding the privilege fails to adequately assert it, and instead allows the privileged information to be disclosed on the record.
  5. Texas Rules of Civil Procedure allows for an attorney to instruct a witness not to answer a question during an oral deposition if it is necessary to preserve a privilege.
  6. Texas Rules of Evidence supports the general rule that evidentiary privileges are waived at the privilege holder voluntarily discloses the privileged matter or consents to disclosure. One subsection of that rule specifically applies to the attorney-client privilege and limits the general waiver rule when there has been actual disclosure. That particular section provides a mechanism to clawback inadvertently disclose attorney-client communication providing it is done promptly.
  7. Texas Tech allowed the substance of the privilege communication to be elicited at a deposition and later transcribed. That is a problem because once the information has been disclosed, loss of confidentiality is irreversible.
  8. The preferred course of action would have been for Texas Tech’s counsel at Salas’s’ deposition to instruct Salas , who was a current employee, not to reveal attorney-client communications, an approach specifically allowed by the Texas Rules of Civil Procedure. That simply wasn’t done. Further, Texas Tech took no action to protect the privilege communication until almost 2 years later, which was certainly not promptly, when objected to plaintiff’s use of the deposition when it filed a motion to strike.



Court’s Reasoning That Direct Evidence Existed


  1. Salas’s testimony was direct evidence that the interim program director had discriminatory intent against the plaintiff based upon plaintiff’s perceived impairment, and so the McDonnell Douglas burden shifting procedure does not apply to this case.
  2. For workplace comments to provide sufficient evidence of discrimination, the remarks must be: 1) related to the protected class; 2) proximate in time to the adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.
  3. Salas’s testimony not only contained comments that the interim program director viewed plaintiff’s weight to be an impairment, but also expressed an intent to terminate the plaintiff and find other pretextual reason to cover up her true motives. The timing of those statements was just before the imposition of the probationary period that preceded plaintiff’s termination.





  1. Many states have disability nondiscrimination laws and they may take a different approach than the federal cases interpreting the ADA even though those states will look to the ADA and the EEOC for guidance. Washington and Texas have now done precisely that with respect to whether a physiological condition is required for morbid obesity claims. The Washington case goes further because it extends beyond regarded as claims.
  2. The Texas case is a regarded as claim case. That is a very important distinction because under both Texas and the ADA as amended, regarded as claims do not allow for reasonable accommodations. In this particular case, that could be a critical factor.
  3. Whether morbid obesity requires an underlying physiological condition will undoubtedly head to the Supreme Court eventually.
  4. As far back as 1993, the First Circuit held that morbid obesity was a disability under §504 of the Rehabilitation Act. See, Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), which was also a regarded as claim.
  5. Labor and employment lawyers frequently discuss the catspaw theory of liability as it can come up frequently. I haven’t done that much in my blog. The Texas decision does a nice job of laying out the theory in an understandable manner.
  6. Attorney-client privilege can be compromised by third parties in the room.
  7. Texas Tech’s approach to protecting the conversation was a bit strange. It seemed that just got lost in the shuffle somehow. If you do have an issue with needing to protect the attorney-client privilege, it has to be done promptly.
  8. It is rare at depositions where a lawyer instructs a witness not to answer a particular question, but it does happen from time to time and indeed, as this case illustrates, it should happen.
  9. Even if somehow the conversation with the attorney was not admitted, the facts of this case are so egregious that the plaintiff might still survive under McDonnell Douglas.
  10. Independent investigations are an excellent preventive law tool. If utilized in this case, the result may have been different.
  11. There also seemed to be a lack of training on what the rights of people with disabilities are. Be sure to use knowledgeable trainers (it’s a huge part of my practice).
  12. Direct v. indirect evidence is made a big deal of here. That continues to be the case in most places. We did discuss one court’s frustration with having to make the distinction constantly here.
  13. The first section of this blog entry should make it very clear that a plaintiff should only when absolutely necessary alleged working as the major life activity. It is simply too difficult to prove and also creates a risk of legal malpractice, which we discussed here. I believe that it is likely that even after Kisor v. Wilkie, which we discussed here, that determining whether working at the major life activity is substantially limited per the Sutton test and the EEOC interpretive guidance will survive if it ever gets to the Supreme Court.
  14. With respect to the morbid obesity question as a per se disability, the Texas Supreme Court will be hearing oral argument on this case and on that question on February 21, 2023.