At five feet four inches, four hundred twenty-five pounds, a food truck employee at Wagner’s in Kentucky was morbidly obese and suffered from diabetes.  She was fired due to her “personal appearance” —  two of her coworkers testified that she told them that she was informed that she was fired because she was “overweight and dirty.”  She sued for disability discrimination under Kentucky’s version of the ADA, and after being thrown out of court on a summary judgment motion, she appealed.

We commented on July 2, 2012 that only one state – Michigan – and only 6 cities prohibit discrimination based upon physical appearance or obesity.  We also noted that a few courts have taken the position that obesity is a “disability” under the expanded ADA definition.

We also posted a couple weeks ago that the recent decision of the American Medical Association to declare obesity a disease would likely spur lawsuits under the Americans with Disabilities Act.  We wrote that ”we are unaware of any new laws which treat obesity as a protected class, but the AMA’s action last week is sure to inspire a spate of new suits which claim that the disease of obesity is a disability under the ADA — citing the American Medical Association.”

This new decision from a state appeals court in Kentucky held that our Plaintiff (above) stated a viable disability discrimination claim, but did not quite declare “morbid obesity” in and of itself (without more) a disability.

The issue before the Court was whether she established a prima facie claim that she was disabled according to the state statute: that is, whether, among other things, she could show that she suffered more than merely being overweight, whether her impairment affected one or more of her body systems, and whether her impairment substantially limited one (or more) major life activity.

The Court first discussed morbid obesity, which it defined as “a person’s weighing either double his normal weight or at least one-hundred pounds more than his normal weight.”  It held that she, indeed, suffered from this disorder, but “merely being overweight is not a disability — absent more.”

An expert witness testified at deposition that morbid obesity is “a metabolic disease of diverse etiologies involving genetic neuro-humeral, environmental [sic] that all come together to result in a condition of decreased energy utilization and increased fat storage, and that in itself sets off a cascade of dominos leading to a host of other co-morbidities[.]”  He reiterated that “morbid obesity like [Plaintiff’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 (emphasis in original).”

Based upon this testimony the Court held that “it was clear error for the trial court to find that [Plaintiff’s] condition did not have an underlying physiological cause.”

The Court then discussed whether her impairment affected one or more of her body systems, and held that she had developed diabetes as a result of the morbid obesity, “a disorder of the endocrine system, a major body system as set forth by the regulation.”  Accordingly, said the Court, she “has established that her morbid obesity is an impairment contemplated by the statutory scheme and has established that merely being overweight is not a disability in itself.”

Whether her impairment substantially limits one (or more) major life activity was the next element for her to show, and the Court found that she “suffers from sleep apnea, a condition causing difficulty in breathing during sleep. There is no dispute that breathing is a major life activity.  … [Also] [a]mong the major life activities listed [in the statute] is “caring for oneself.”  [The expert witness] testified that hygiene is difficult for patients with morbid obesity. He also said that a simple activity such as tying one’s shoes is complicated and difficult due to the condition. … Additionally, [he] testified that morbid obesity shortens a person’s life expectancy by approximately fifteen years. He testified that most morbidly obese people are unable to lose weight without drastic intervention — such as bariatric surgery.”

The Court concluded that “In light of this evidence, we must conclude that [Plaintiff] has a disability according to law, and she has established a prima facie case of discrimination.”