Kentucky’s statutes, which are mirrored after the federal Americans with Disabilities Act, make it unlawful for an employer to discriminate against an employee due to a disability. KRS 344.040(1) and 207.150. In a recently-issued decision, the Kentucky Court of Appeals has greatly increased the potential liability exposure that employers may face with respect to  discrimination clams.

Just a few weeks ago, the American Medical Association (AMA) declared obesity as a disease. This decision is discussed here. This declaration brought to the limelight an important legal question; to-wit, should obesity, now a disease according to the AMA, also be considered a disability? According to the Kentucky Court of Appeals, and as held in Pennington v. Wagner’s Pharmacy, Inc., the answer is yes.

Melissa Pennington worked for ten years as a food truck operator for Wagner’s, which is a famous restaurant staple located on the backside of Churchill Downs. Melissa was 5’4,” weighed 425 pounds, and suffered from diabetes. In April 2007, Pennington’s supervisor was instructed to terminate Pennington due to her “appearance.” It was not clear what aspect of Melissa’s appearance was unacceptable.

Shortly after her dismissal, Melissa filed suit and alleged that Wagner’s had unlawfully discriminated against her because of her morbid obesity. At the trial court level, Wagner’s was granted summary judgment.

To establish a discrimination claim, Melissa was required to prove a prima facie case by demonstrating that:

(1) she had a disability as that term is used under the statute (i.e., the Kentucky Civil Rights Act); (2) she was “otherwise qualified” to perform the requirements of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment decision because of the disability.

It was undisputed by the parties that Pennington was qualified for her job and, obviously, her dismissal was an adverse employment decision. Thus, the real issue was whether she was disabled as defined by the Kentucky Civil Rights Act. To learn how the Court of Appeals considered this issue, check back on Wednesday.