
    In the Matter of Westinghouse Electric Corp. et al., Respondents, v State Division of Human Rights et al., Appellants.
    Argued December 13,1979;
    decided January 10, 1980
    
      POINTS OF COUNSEL
    
      Jerome P. Vanora, Ann Thacher Anderson, Harry Starr and Elaine Berger for appellants.
    I. The construction of the term "disability” in the Human Rights Law, as interpreted or understood by the division is reasonable and consistent with the statutory purpose and legislative intent, and therefore, is to be accepted by the court. (Matter of Morris v County Bd. of Assessors of Nassau County, 35 NY2d 624; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Hirschfeld v Feuer, 35 NY2d 176; Matter of Howard v Wyman, 28 NY2d 434; Matter of Albano v Kirby, 36 NY2d 526.) II. The commissioner’s determination that Westinghouse discriminated against Mr. Tenbroeck because of his disability is supported by substantial evidence on the whole record and should not be disturbed. (Green v McDonnell Douglas Corp., 463 F2d 337; Witherspoon v Mercury Frgt. Lines, 457 F2d 496; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Matter of Guardian Capital Corp. v New York State Div. of Human Rights, 46 AD2d 832; New York Inst, of Technology 
      
      v State Div. of Human Rights, 48 AD2d 132, 40 NY2d 316; Matter of Sowa v Looney, 23 NY2d 329; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Burke v Bromberger, 300 NY 248; State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612.)
    
      James L. Burke for respondents.
    I. This appeal is a purposeful attempt that employers must employ an applicant, otherwise employable, who, at the time of application suffers from a physical disability that will not then prevent job performance, but whose physical disability will become worse because of job performance. II. The action of the employer was not discriminatory within the legislative intent. (Griggs v Duke Power Co., 401 US 424; Matter of Page Airways of Albany v New York State Div. of Human Rights, 39 NY2d 877; Matter of Eastern Greyhound Lines Div. of Greyhound Lines v New York State Div. of Human Rights, 27 NY2d 279.)
   OPINION OF THE COURT

Jones, J.

Under the former provisions of the Human Rights Law it was not an unlawful discriminatory practice to deny an applicant employment because of a physical disability which was related to the ability to engage in the activities of the job or occupation, even though it was not demonstrated that the degree or extent of the disability of the particular applicant was such as would interfere with his ability to engage in such activities.

The complainant, an 18-year-old high school student, is the son of parents both of whom were employed by Westinghouse Electric Corporation. As such he was entitled to and in May, 1975 did apply for summer employment as a general laborer in a special employment program offered to dependent children of Westinghouse employees. All applicants for the program were required to submit to a pre-employment physical examination. When complainant was examined it appeared that he then was, and at various times in the past had been, affected with dermatitis, a rash located primarily in the femoral or intertriginous region and secondarily on parts of his body and limbs. Complainant was rejected for employment because in the opinion of the examining physician exposure to the chemical elements present in the Westinghouse plant would so exacerbate the dermatitis as to disable complainant from performing the duties of his desired employment.

In consequence of his rejection, complainant filed a complaint with the State Division of Human Rights, charging that Westinghouse and its personnel director had unlawfully discriminated against him because of a physical disability. After a finding of probable cause and a subsequent hearing, the State division determined that Westinghouse and its personnel director had indeed refused to employ complainant because of a physical disability (dermatitis) in contravention of the statutory proscription. The State Human Rights Appeal Board affirmed the division’s decision, ordered respondents to pay complainant a sum of money equal to what he would have earned for the period May 22 to August 15, 1975 had he not been rejected for employment and imposed other sanctions.

The employer and personnel director thereupon instituted the present proceeding under section 298 of the Executive Law to annul the decision and order of the appeal board. The Appellate Division granted the petition and annulled the board’s determination. We now affirm that disposition.

This case is governed by the provisions of subdivision 21 of section 292 of the Executive Law as they existed prior to the amendment effected by chapter 594 of the Laws of 1979. Under those provisions the term "disability” was "limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking”. This definition excluded as a predicate for a finding of an unlawful discriminatory practice because of disability any impairment of a general character which was "related” to the ability to engage in the activities of the job or occupation. For such exclusion it was not then necessary for the employer to go further and to establish that the degree or extent of impairment suffered by the individual complainant was such as to prevent him from performing in a reasonable manner the activities involved in the job or occupation sought (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727). Thus, in Averill Park, to remove the failure to employ because of physical disability from the statutory proscription against discrimination it was sufficient to show that the prospective school bus driver had a loss of hearing; it was not necessary to show that the extent of his loss of hearing was such as to impair his ability to operate school buses. Similarly, in Ghee, a finding of unlawful disability discrimination was precluded because the complainant suffered a physical impairment of a kind that would affect the performance of duties of a maintenance mechanic (shortened right femur and inability to flex his right knee); it was irrelevant that there was no evidence that this physical condition would in fact interfere with his ability to perform the duties to be assigned to him.

In consequence of the decision in Averill Park, the Legislature promptly amended the statute to narrow the statutory exclusion, substituting for the prior, general relatedness standard an individualized test — for exemption the disability must be shown to be such as would "prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought”. (L 1979, ch 594, eff July 10, 1979.) We held in Ghee that this amendment was not to be given retroactive effect.

Applying the former standard to the present case, as we must, the evidence in this record is uncontroverted that the dermatitis suffered by complainant was a physical impairment resulting from physiological or anatomical conditions, was demonstrable by medically accepted clinical diagnostic techniques, and in an exacerbated state would interfere with the performance of duties in the employment sought by complainant. Again, it is irrelevant that it was not shown that at the time complainant applied for employment the condition had progressed to the point where there was such interference. We need not and do not consider what would be the proper disposition in this case were the individualized standard of the present statute to be applied.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Fuchsberg, J.

(concurring). As the court today reiterates, and as it has heretofore decided, under subdivision 21 of section 292 of the Executive Law as it existed when this case arose, the question whether an individual complainant’s impairment to any degree or extent prevents performance of a job is not dispositive of his or her entitlement to the protection accorded a disabled person by that statute (Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950). Indeed, the employer in the present case perceived the Averill holding as placing the determination of “relatedness” in its hands rather than in those of the Division of Human Rights. Moreover, the court thereafter ruled that the amendatory language by which Assemblyman Oliver Koppell and his fellow sponsors of the statute sought, post-Averill, to clarify the original legislative intent was not to be applied retroactively (State Division of Human Rights [Ghee] v County of Monroe, 48 NY2d 727). Accordingly, there is now no point in pressing the views expressed in my dissenting opinions in the afore-mentioned cases. All the more is this so since Averill and Ghee will not control controversies arising after the effective date of the recent amendment (L 1979, ch 594).

Wachtler, J.

(dissenting). In affirming, the majority has effectively repealed section 296 of the Executive Law as originally enacted, insofar as it seeks to prevent a disability unrelated to job performance to be used as an excuse not to hire an individual.

In this case we have an 18 year old with dermatitis, a condition totally unrelated to the three-month summer job which he sought. He was not hired because the employer feared that this youngster’s condition would be exacerbated by the chemicals to which he would be exposed. It is conceded that this disability, a rash on his face and inner thighs, would not have interfered with his job performance.

Any number of conditions, from acne to arthritis could be aggravated by any number of employment modes but it seems perverse to permit a threat or even the likelihood of this kind of future disability to be used as an excuse not to hire. Indeed, it would be difficult to imagine any physical disability which, given the ingenuity of an employer bent on not hiring an individual, could not be projected as a potential cause of future difficulty severe enough to prevent the satisfactory performance of a job at some future date.

Given our determination in this case, and our recent decisions in Matter of State Div. of Human Rights v Averill Park Cent. School Dist., 59 AD2d 449, affd 46 NY2d 950; State Div. of Human Rights [Ghee] v County of Monroe, 48 NY2d 727), the State Division of Human Rights will be hard put to find a case of disability discrimination which it can remedy under the statute as originally enacted. Hopefully in future cases the recent amendment to the statute will remove the obstacle created, by these decisions. It is unfortunate, however, that the court persists in applying and expanding, in pending cases, the rule announced in these decisions long after the Legislature has indicated by the recent amendment, that the statute should not be interpreted in such a technical and unworkable manner.

Chief Judge Cooke and Judges Jasen and Gabrielli concur with Judge Jones; Judge Fuchsberg concurs in a separate opinion; Judge Wachtler dissents and votes to reverse in another opinion in which Judge Meyer concurs.

Order affirmed.  