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With the amendment of the Americans with Disabilities Act (ADA) in 2008, the definition of what constitutes a “disability” under the law has been interpreted much more expansively.  Despite this, the Kentucky Supreme Court (applying the state disability law but relying significantly on the ADA and its interpretive precedent), reversed this trend when it affirmed the lower court’s ruling that a morbidly obese plaintiff – 5 feet 4 inches tall and 425 pounds – was in fact not  “disabled,” and thus ruled in favor of the employer.

In Wagner’s Pharmacy, Inc. v. Melissa K. Pennington, (May 14, 2015, per curiam), plaintiff presented as a 10-year employee and worked as the operator of a food and drink concession truck owned by the pharmacy employer.  Plaintiff parked the truck on the backside area of Churchill Downs and was charged with procuring food and concession sales.

Her weight issue lead to the onset of diabetes, which the facts showed often led plaintiff to present with “raccoon like darkening around her eyes, perhaps giving her a ‘dirty’ appearance,” according to the lower court record.  Over the years, her sales declined, which the employer attributed to the dilapidated nature of the truck and plaintiff’s refusal to move the truck to different sites in an attempt to generate more sales.

A few days prior to her discharge, plaintiff presented to the pharmacy owner’s office to pick up her paycheck.  According to the manager present that day, plaintiff looked “dirty,” and the manager then told plaintiff’s supervisor to terminate her for her “personal appearance,” as well as declining sales.  Both the manager and supervisor denied that the manager ever referred to plaintiff’s weight as a determining factor, but rather her overall “dirty” appearance.

A couple months following her termination, plaintiff filed suit under the Kentucky Civil Rights Act (KCRA), alleging that the pharmacy had discriminated against her because of her disability or handicap (morbid obesity), and/or because she was regarded as having such a disability.  Like the ADA, the KCRA defines “disability” as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; or (3) being regarded as having such impairment.

The lower court granted the employer’s motion for summary judgment; based principally upon the fact that plaintiff could not show that her morbid obesity was due to a physiological cause.  Indeed, even though plaintiff presented a medical expert who spoke at length about the effects of morbid obesity, i.e., inability to care for oneself, tie one’s shoes, causing diabetes, etc., the lower court found that this expert was speaking generically about morbid obesity and not about the physiological cause of this plaintiff’s morbid obesity.

Further, the lower court found that the employer did not “regard” plaintiff as disabled based upon her morbid obesity, as she weighed in excess of 400 pounds when she was originally hired 10 years earlier.  Last, the lower court held that plaintiff failed to show that the cause of her discharge was in fact her morbid obesity, as opposed to her general unkempt appearance and lagging concession sales.

The state court of appeals reversed and placed much more significance on the medical expert’s testimony regarding the effects of morbid obesity on the average person, including such limitations as sleep apnea, hygiene, and simple life activities, the shortening of the average life span by approximately 15 years, and that most morbidly obese persons cannot lose weight without drastic surgical intervention, such as bariatric surgery.

The Kentucky Supreme Court saw the matter consistent with the lower court.  Relying upon the Sixth Circuit’s 2006 decision in EEOC v. Watkins, the court held that absent a plaintiff demonstrating some physiological reason for the morbid obesity, i.e., genetic disorder, that courts generally will not find morbid obesity to be a “disability.”  Further, the Kentucky Supreme Court found it dispositive that the medical expert in this case had never evaluated the plaintiff personally, but rather was opining about morbid obesity and its effects on life activities from the average person’s perspective.

For employers, the decision in this case is a victory and frankly a “throwback” to the pre-amended ADA where courts would take a much harder look at the alleged “disability” pled and its effects on the individual at issue, as opposed to generally categorizing a condition as a disability.  It will be interesting to see if this decision is an aberration in the post-amended legal world of the ADA or rather the beginning of a reversion back to looking at each individual as he/she is impacted based upon the alleged condition.
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