Our post on Monday detailed background information on a recent decision from the Kentucky Court of Appeals styled as Pennington v. Wagner’s Pharmacy, Inc. Before being heard by the Court of Appeals, the case was heard at the trial court, where the court had to consider whether the plaintiff, Melissa Pennington, was disabled as defined by the Kentucky Civil Rights Act due to morbid obesity.

KRS 344.010(4) defines “disability” with respect to an individual as:

          (a) A physical or mental impairment that substantially limits (1) one or more of the major life activities  of the individual;

            (b) A record of such an impairment; or

            (c) Being regarded as having such an impairment.

The trial court had to look to the Equal Employment Opportunity Commission’s definitions to elaborate upon the statute criteria, as specified by the then-controlling case law.[1] Specifically, the trial court followed the EEOC’s definition of “physical or mental impairment” which, at the time, was defined as:

[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculosketal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

The trial court found that Melissa’s obesity was not a disability under the foregoing definition because it was not caused by an underlying physiological condition. The court based its opinion on a previous Sixth Circuit case, EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 440, which held that “to constitute an ADA impairment, a persons’ obesity, even morbid obesity, must be the result of a physiological condition.”

The Court of Appeals, perhaps in line with the ADA’s new label relative to obesity, disagreed that Pennington’s obesity was not the result of a physiological condition. Testimony in the case was provided by a doctor who explained that morbid obesity is “caused by a cluster of often unknown physiological abnormalities.” In addition, the doctor testified about the ways in which Melissa’s obesity substantially limits her major life activities. Based on this information, the Court of Appeals held that Melissa is entitled to a determination by a jury as to whether her dismissal was the result of discrimination due to her morbid obesity.

The ramifications of the Court of Appeals’ decision are substantial, particularly given that one in three Americans are afflicted with obesity. An employer would do well to consider its morbidly obese employees as “disabled” and make the appropriate concessions for them, as with other disabled employees. An adverse employment action against these employees could met with a discrimination claim.

We must wait to see whether Wagner’s will appeal the ruling to the Kentucky Supreme Court. For now, however, the scales are tipped in favor of employees.

_{[1] Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 194, 122 S.Ct. 681, 689, 151 L.Ed.2d 615 (2002) required courts to consider the EEOC’s definition. The holding of Williams was overruled by Congress’s Amendments to the Americans with Disabilities Act in 2008. However, the amendments are not retroactive and thus cannot be applied to this case because the alleged discrimination occurred in 2007.}