Since the American Medical Association officially recognized obesity as a disease earlier this summer, we’ve already seen one obesity-as-disability case pop up. Here’s the second. 

Melissa Pennington worked for Wagner’s Pharmacy. She was 5-foot-4 and weighed 425 pounds. She also suffered from sleep apnea and diabetes, which caused her to have dark circles under her eyes.

On one of her off-duty days in 2007, Pennington went to the office of Brenda Smyth, manager of Wagner’s, to pick up her paycheck. Pennington was in the process of moving from one residence to another, and, as she later admitted, she wasn’t at her best appearance. However, she testified that she never went to work looking as she did that day, calling it “an anomaly.”

Soon after, Smyth asked Pennington’s supervisor, Martha Parrish, to terminate Pennington due to her “personal appearance.”

Smyth didn’t specify what she meant by “personal appearance” — whether it was Pennington’s disheveled appearance on one occasion (when she was off duty) or whether it was Pennington’s morbid obesity. However, two of Pennington’s co-workers later submitted affidavits stating that Parrish “tearfully” told them that Smyth said that Pennington was fired because she was “overweight and dirty.”

The court weighed the matter and …

So Pennington turned around and sued, claiming that the pharmacy had violated disability law by firing her because she was morbidly obese. The company countered it had fired Pennington for poor sales.

The court sided with Pennington and sent the case to a jury.

Why? A doctor found that Pennington’s morbid obesity was caused by an underlying physiological condition. Plus, her obesity had led to her developing diabetes and sleep apnea, both of which affected major life activities.

The court wrote:

… the record does not reflect that Pennington was ever given any reason concerning what aspect of her personal appearance was the basis of her dismissal at the time of her termination. Throughout her ten years of employment, Wagner’s had never complained about her performance or asked her to change anything about her appearance. It is reasonable to take judicial notice of the fact that morbid obesity is very likely the most obvious and noteworthy aspect of one’s physical appearance.

A team of attorneys writing for Manatt Phelps & Phillips had this takeaway from HR pros:

Finding that the plaintiff established a prima facie claim of disability discrimination based upon her morbid obesity tracks growing recognition by courts of similar claims. Earlier this summer, the American Medical Association declared obesity to be a disease, upgrading it from a condition, potentially providing more support for plaintiffs alleging a violation of discrimination laws. Coupled with a growing number of jurisdictions – six cities and one state, Michigan – prohibiting discrimination based upon physical appearance or obesity, employers should be prepared to be on the receiving end of a similar suit, particularly with an estimated one-third of American adults classified as obese (according to the AMA).

The case is Pennington v. Wagner’s Pharmacy, Inc. (courtesy of Manatt).

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