Archive for category Obesity

Kentucky Court of Appeals Weighs in Favor of Employee: Is Morbid Obesity a Disability? Part II

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.

Brittany Koch

 

 

 

 

 

 

 

Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Share this:

Leave a comment

Kentucky Court of Appeals Weighs in Favor of Employee: Is Morbid Obesity a Disability?

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.

Brittany Koch

 

 

 

 

 

 

 

Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Leave a comment

Weight For It: How Will The AMA’s New Decision Affect Employers?

In a press release issued on June 18, 2013, the American Medical Association (“AMA”) declared obesity as a “disease.” The decision was met with sharp controversy, as it automatically classified millions of overweight Americans as diseased. Critics of the classification believe that obesity is not a disease and that there is no way to determine one’s health based on a number on the scale. The AMA hopes the new label will lead to better coverage and treatment for those who suffer from obesity.

Obesity affects approximately one in three Americans. And the AMA’s decision may be affecting 100% of employers, as it once again raises the question of what should be considered as a disability under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination against a qualified employee or applicant with a disability, provided that he can perform essential functions of the job with or without reasonable accommodation. A person is considered “disabled” if he:

  • Has a physical or mental condition that substantially limits a major life activity (such was walking, talking, learning, seeing); or,
  • Has a history of a disability; or,
  • Is perceived to have a physical or mental impairment that is not transitory and minor.

The ADA Amendments Act of 2008 (“ADAAA”) specifically provided that “disability” for purposes of the Act “shall be construed in favor of broad coverage of individuals under [the ADA] to the maximum extent permitted by the terms of [the ADA].”

In 2010, the Equal Employment Opportunity Commission (“EEOC”) filed its first-ever lawsuit on an employee’s behalf asserting that “severe” obesity was a protectable disability under the ADA. The case, EEOC v. Resources for Human Development, Inc., provided no clear guidance on what level of obesity is severe enough to warrant ADA-protected disability status. In 2012, The EEOC publicly stated that “the law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity.” (emphasis added). The EEOC defines morbidly obese as weighing twice the normal body weight. This came after the case EEOC v. BAE Systems, Inc., wherein BAE Systems, a global security and defense company, fired an employee who weighed over 600 lbs. The EEOC claimed the employee was able to perform the essential duties of his job and received good performance reviews and was only terminated because of his size. The case settled, with BAE paying the employee $55,000 in damages.

While it is obvious that morbidly obese employees may require reasonable accommodations, it is harder to know at what point a mildly obese person will require the same. Additionally, under the ADAAA, it does not matter if a person is actually limited by their disability; if an employer perceives impairment (and the impairment is not minor nor transitory), any adverse action on the basis of the impairment can be grounds for a discrimination claim.

The AMA’s new position on obesity illustrates the current cultural shift in viewing obesity as more than just a sign of weak willpower; a “disease” is something beyond an individual’s control. There may be legitimate reasons why an employer is wary to hire or promote an obese person, such as increased insurance premiums, the business’s image, or the heightened possibility for a severely overweight person to have other serious health problems. However, employers must be careful not act on this conscious (or sometimes unconscious) bias. The “obesity as a disease” announcement can only work to bolster an employee’s weight-based discrimination claim. With one in three Americans being obese, the potential for these claims is exponentially high.

B. Johnson

 

 

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

Leave a comment

Follow

Get every new post delivered to your Inbox.

Join 27 other followers