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Kentucky Appeals Court Weighs Morbid Obesity Case, Tips Scale in Favor of Plaintiff

In a recent decision with hefty implications for employers, the Kentucky Court of Appeals found that a plaintiff could establish a prima facie case for disability discrimination due to morbid obesity. In Pennington v. Wagner’s Pharmacy, Inc., the appeals court vacated the trial court’s order for summary judgment in favor of the defendant employer that had allegedly fired Pennington for unspecified shortcomings in “personal appearance.”

Pennington, who had suffered from morbid obesity her entire life, went to her manager’s office on her day off to pick up her paycheck - and admittedly was not at her best physical appearance. She testified that she had been moving that day and never went to work looking that disheveled. Shortly afterward, her manager allegedly instructed her supervisor to fire her due to her “personal appearance.” Pennington brought suit alleging discrimination based on her disability of morbid obesity. Her employer contended that she had been fired for failure to generate sales and moved the court to dismiss the claim for failure to make out a prima facie case of discrimination, because obesity was not caused by an underlying physiological condition and therefore was not a disability under state law. The trial court agreed and entered judgment for the defendant.

The appeals court found that under Kentucky state law (which is modeled after the Americans with Disabilities Act) and the Equal Employment Opportunity Commission regulations used to interpret the law, morbid obesity was a disability that was caused by an underlying physiological condition and that Pennington’s obesity had caused diabetes, which affected a major body system. In his deposition testimony, Dr. Edwin Gaar stated that “morbid obesity like [Pennington’s] is caused by a cluster of often unknown physiological abnormalities and that morbid obesity like hers is in itself an abnormal physical condition or disease.” Additionally, the court found that the plaintiff satisfied her burden of demonstrating an impairment of a major life activity as a result of the disability. The court determined that the plaintiff’s sleep apnea and difficulty in caring for herself, including personal hygiene, were sufficient impairments of major life activities to sustain a discrimination claim.

Having found that the plaintiff had established a sufficient prima facie case for discrimination, the court shifted the burden to the defendant to articulate a legitimate, nondiscriminatory reason for her termination. The court believed that the discrepancy between Pennington’s supervisor’s testimony that she was told to dismiss Pennington for unsatisfactory “personal appearance” and the reason for termination given in the defendant’s answer to the complaint of “failure to generate sales” created a genuine issue of material fact for a jury to decide. Accordingly, the appeals court reversed the trial court and remanded the case for further action.

Employers should take caution in making any employment decisions based on an individual’s weight. A request for accommodation from obese employees, especially those with an underlying physiological disorder, should be treated as a request for accommodation from a person with a disability. In addition, all employers should be proactive in dealing with the increasing problems associated with obesity in the workplace, which may include the implementation of a wellness program that does not discriminate against obese individuals.




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