dissenting.
Respectfully, I dissent.
After completing an employment application which later was found to contain numerous and material omissions and misrepresentations, Epperson was hired to work for Toyota as a production-line worker at its plant in Georgetown starting on April 20, 1992. Less than two months later, on June 17,1992, Epperson suffered a wrist injury on the job. Being unable to return to work within six months of beginning his medical leave of absence, Epperson’s employment was terminated pursuant to company policy for workers in “initial evaluation periods.” He responded by filing this action alleging discrimination based upon disability in violation of KRS 344.040.
Epperson deliberately falsified his medical questionnaire. Although he claimed never to have suffered from a mental disorder, he in fact had required the services of a mental health hospital after attempting suicide by drug overdose. That hospitalization was one of at least five required in 1988 and 1989 by Epperson, whose medical history acknowledged only two 1974 hospitalizations for an appendectomy and arm surgery. The 1988 and 1989 hospitalizations involved not only Epperson’s drug overdose but also severe headaches and stomach problems as well as a back injury.
McKennon v. Nashville Banner Publishing Company, 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), is distinguishable from this case on the facts. McKennon involved a federal age discrimination action filed by an employee discharged after three decades of employment. In the course of defending that action, the employer discovered that Ms. McKennon near the end of her employment had copied confidential financial documents for “insurance” against a potential age-related discharge. Reversing the Sixth Circuit’s decision for the employer, the Court rejected the defense as an absolute bar to an ADEA action because an “employer could not have been motivated by knowledge it did not have” 513 U.S. at page 360, (115 S.Ct. at page 885) but later determined that neither reinstatement nor front pay were available remedies because “[i]t would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” 513 U.S. at p. 362, 115 S.Ct. at p. 886.
McKennon expressly allows differing determinations premised upon “the factual permutations and the equitable considerations” involved in addressing such “important public purposes.” 513 U.S. at pages 360, 115 S.Ct. at pages 885-86. Unlike this case, the misconduct in McKennon did not involve the very establishment of an employment relationship.
At pages 13-14 of the Court of Appeals opinion, Chief Judge Lester reasoned in his dissent as follows:
The Court spoke of “important national policies” and “important public purposes which means that applying the mandates of McKennon to the case at bench we are equating fraudulent misrepresentations with important state policies and important public purposes. I hardly think that in enacting KRS 344.060 that the General Assembly would have envisioned such a lack of candor upon an individual’s part as a basis for legal redress. The lofty phrase “societal interests” to my way of thinking does not include an interest on the part of “society” in nurturing a claim such as the one before us.
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*417Since I agree that we are not bound by federal decisions in this type of litigation, then, as Justice Kennedy suggests, I would address this case from the standpoints of “the factual permutations” and the “equitable considerations” and affirm the circuit court.
The Kentucky General Assembly has shown strong disfavor for individuals who falsify employment applications and other pre-employment business records. For example, an individual is barred from receiving unemployment benefits when he is discharged for “falsification of an employment application to obtain employment through subterfuge.” KRS 341.370(6). Likewise, State Personnel Rules for Executive Branch Employees provide that an applicant may be disqualified from employment where it is determined that “[h]e has made a false statement of material fact in his application.” KRS 18A032(l)(e). Also, the Kentucky Penal Code makes it a Class A misdemeanor for a person to make a “false entry ... in the business records of an enterprise.” KRS 517.050. These statutes reflect a strong public policy that individuals — like Mr. Epper-son — who engage in fraudulent conduct to secure employment not be rewarded for their misconduct. The Court’s opinion is, therefore, inconsistent with the above-stated public policy of this Commonwealth.
As noted by Chief Justice Lester in his dissent, “this cause of action has its foundation in the gross fraudulent misrepresentations made by Appellant when he applied for employment.” See Opinion at p. 12. I do not believe that in enacting the Civil Rights Act, the Kentucky General Assembly intended to protect and insulate prevaricators from the natural consequences of their dishonesty. The majority opinion, however, rewards Mr. Epperson for his gross fraudulent misrepresentations.
LAMBERT and WINTERSHEIMER, JJ., join in this dissenting opinion.