Several Pan-Am flight attendants claim that Delta Airline, which entered into an assets purchasing agreement with Pan-Am after they declared bankruptcy, didn't hire them because they weighed too much. In this Dec. 31, 1996 ruling, the New York Supreme Court Appellate Division held that Delta's use of weight standards in deciding not to hire the flight attendants did not constitute disability, age and/or gender discrimination.

 



SUPREME COURT, APPELLATE DIVISION



First Department, September 1996


Ernst H. Rosenberger, J.P.


Theodore R. Kupferman


Eugene Nardelli


Peter Tom


Angela M. Mazzarelli, JJ.


Delta Air Lines, Inc.,


Petitioner,



For an order, etc.,



-against-



New York State Division


of Human Rights, et al.,


Respondents.


Application of: Salvatore Alesci,


et al.,


Petitioners,


For a judgment, etc.,


-against-



New York State Division of


Human Rights, et al.,


Respondents.


58780-58781



Applications pursuant to CPLR article 78 challenging
 the determination of the New York State Division of 
Human Rights dated September 18, 1995 (transferred
 to this Court by orders of the Supreme Court,
 New York County [Leland DeGrasse, J.], entered
 on or about January 2, 1996 and January 12, 1996),
 which, inter alia, dismissed certain claims of 
discrimination, and awarded back pay to certain
 individual petitioners. 



Stuart H. Bompey, of counsel (Ire G. Rosenstein,
 Hunter R. Hughes,  Benjamin A. Stone, Thomas J.
 Munger, Jay D. Milone, on the brief, 
Orrick, Herrington & Sutcliffe, Rogers & Hardin and Delta 
Air Lines, Inc., 
Law Department, attorneys) for Delta Airlines, 
Thomas A. Holman, of counsel (Goodkind Labaton Rudoff 
& Sucharow, 
LLP and Starr & Holman, LLP, attorneys) for individual 
petitioners/respondents. 



TOM, J.



In this appeal, we are called upon to determine whether 
respondent 
airline's use of weight standards in hiring flight attendants 
constitutes 
disability, age and/or gender discrimination; and whether 
the Federal 
Airlines Deregulation Act ("ADA") preempts petitioners' 
claims of 
discrimination. 



Factual Background

In the summer of 1991, Pan American Airways ("Pan Am") 
filed for 
bankruptcy protection and, as a result, sought to sell certain 
assets, 
including its European and Asian routes. Pan Am and 
respondent Delta 
Airlines, Inc. ("Delta") subsequently entered into an Asset 
Purchase 
Agreement (the "Agreement") dated July 27, 1991, 
whereby Delta 
acquired a substantial amount of Pan Am's assets. In 
addition, Delta 
agreed to hire approximately 6,000 Pan-Am employees on 
the basis of 
specific criteria, including seniority, language proficiency, 
personal 
interviews, and satisfaction of the least restrictive of the 
Delta or Pan Am 
small to medium frame weight standards contained in 
Delta's 
height/weight chart. 



Petitioners are all former flight attendants and pursers of 
Pan Am with at 
least 14 years of experience at the time Pan Am ceased 
operations. 
Petitioners Salvatore Alesci, Roberta Nina Brown, Hazel 
Lynn Grob, 
Genarina R. Kennan, Merlyn E. Lloyd, Margot Luedke, 
Francisca 
Martinez, Frank P. Pires, Catherine M. Semeniuk, and 
Michael F. Spilios 
contend that they were not hired by Delta due to a 
perceived disability, 
their weight. Delta, on the other hand, maintains that its 
height/weight 
standards are non-discriminatory grooming standards. 
Petitioner Margot 
Luedke avers that she was not hired due to her age, 
disability and national 
origin, and Delta counters that she was offered a position, 
but turned it 
down in favor of a position with Pan Am. Petitioner 
Catherine Semeniuk 
asserts that she was not hired due to her age, disability, 
marital status and 
sex, to which Delta answers that she was not hired because 
she was not an 
active employee of Pan Am at the relevant time and, 
therefore, was not 
eligible for employment under the agreement. 



Procedural Background



Petitioners filed individual administrative complaints 
against Delta with 
the New York State Division of Human Rights 
("NYSDHR") in early 
1992, alleging unlawful discrimination in violation of the 
Human Rights 
Law ("HRL"). Following investigations of the allegations, 
the cases were 
calendared and heard by an Administrative Law Judge 
("ALJ"), 
commencing on July 29, 1994. By Recommended Findings 
of Fact, 
Opinion, Decision and Order dated December 30, 1994, the 
ALJ found 
that petitioners' claims were not preempted by Federal law; 
that the 
petitioners were discriminated against on the basis of their 
age and/or their 
actual or perceived disability and/or their gender; that 
respondent's pre-
employment physical examination violated the Human 
Rights Law as well 
as the rights of the petitioners; that respondent's weight 
requirements and 
pre-employment physical examinations were not bona fide 
occupational 
qualifications; and, that respondent had made unlawful 
inquiries of 
petitioners concerning, inter alia, their age, disability, 
marital status, 
gender, and/or national origin; and recommended an award 
of back pay, 
damages for mental anguish and humiliation, and 
reinstatement. 



A NYSDHR Deputy Commissioner, by Notice of Order 
After Hearing 
dated August 23, 1995, and the subsequent Corrected 
Notice of Order 
After Hearing dated September 18, 1995, rejected a 
majority of the ALJ's 
recommended findings of fact and conclusions. The Deputy 
Commissioner 
found that petitioners' claims of discrimination based on 
their age and/or 
actual or perceived disability and/or marital status were 
preempted by the 

ADA and were therefore dismissed for lack of subject 
matter jurisdiction. 



The Deputy Commissioner further rejected petitioners' 
claims of 
discrimination on the basis of race and/or national origin, 
found in favor of 
petitioners' claims based on gender, and found in favor of 
petitioners, 
claims of unlawful pre-employment inquiry concerning 
petitioners' 
national origin and/or gender. The Deputy Commissioner 
adopted the 
recommended award of back pay but significantly reduced 
the damages 
for mental anguish and humiliation. 



The within Article 78 proceedings were commenced on 
November 13, 
1995, with all of the parties concerned seeking to have 
certain portions of 
the NYSDHR's September 18, 1995 order, which were 
contrary to their 
positions, set aside. By orders dated January 2 and 12, 
1996, Justice 
Leland DeGrasse transferred the proceedings to this Court 
for disposition, 
pursuant to 22 NYCRR 202.57. Our findings follow. 



Scope of Review



An order of a Commissioner of the NYSDHR must either 
be supported by 
substantial evidence or set aside (North Shore Univ. Hosp. 
v. Rosa, 86 
NY2d 413, 419; Citibank, N.A. v. New York State Div. of 
Human Rts., __ 
AD2d __, 643 NYS2d 68, 69). Substantial evidence "means 
such relevant 
proof as a reasonable mind may accept as adequate to 
support a conclusion 
or ultimate fact . . . [it is] [m]ore than-seeming or 
imaginary, it is less than 
a preponderance of the evidence, overwhelming evidence 
or evidence 
beyond a reasonable doubt" (Matter of 300 Gramatan Ave. 
Assocs. v. New 
York State Div. of Human Rights, 45 NY2d 176, 180-181; 
Matter of 119-
121 East 97th St. Corp. v. New York City Comm. on 
Human Rights, 220 
AD2d 79, 81-82), and it exists when the proof is "'so 
substantial that from 
it an inference of the existence of the fact found may be 
drawn 
reasonably'" (Matter of Holland v. Edwards, 307 NY 38, 
44, quoting 
Matter of Stork Rest. v. Boland, 282 NY 256, 273). In 
those cases where 
there is substantial evidence to support an administrative 
determination, a 
reviewing court cannot substitute its judgment in place of 
that of the 
Commissioner, even though an alternative determination 
may be 
reasonable and sustainable (Matter of Consolidated Edison 
Co. of New 
York, Inc. v. New York State Div. of Human Rights, 77 
NY2d 411, 417-
418, rearg. denied 78 NY2d 909; Matter of Imperial Diner, 
Inc. v. New 
York State Human Rights Appeal Bd., 52 NY2d 72, 79; 
Matter of Collins 
v. Codd, 38 NY2d 269; Matter of 119-121 East 97th St. 
Corp. v. New 
York City Comm. on Human Rights, supra, at 82). 



Preemption



The Deputy Commissioner found that petitioners' claims of 
age, disability, or marital status discrimination were 
preempted because the protection 
afforded by the New York State Human Rights Law is 
broader than the 
protection provided by the ADA. Petitioners argue that 
their claims are not 
preempted because Congress, in enacting the Federal 
Airline Deregulation 
Act of 1978, was concerned not with the States' regulation 
of employment 
practices, but rather with the States' attempt to regulate 
airline fares and/or 
routes. 



The ADA's preemption provision provides, in pertinent 
part: 



[N]o State or political subdivision thereof . . . shall enact or 
enforce any 
law, rule, regulation, standard or other provision having the 
force and 
effect of law relating to rates, routes, or services of any air 
carrier having 
authority . . . to provide air transportation. 
(49 USC 417131).



The purpose of the above provision was "[t]o ensure that 
the States would 
not undo federal deregulation with regulations of their own 
. . . [by] 
prohibiting the States from enforcing any law 'relating to 
rates, routes, or 
services' of any air carrier'" (Morales v. Trans World 
Airlines, Inc., 504 
US 374, 378-379). However, the preemption of State law 
by Federal 
statute is not favored absent persuasive reasons either that 
the nature of the 
regulated subject matter permits no other conclusion, or 
that Congress has 
unmistakably so ordained. As recently explained by the 
Court of Appeals: 



[C]ongressional pre-emptive intent may be shown from 
express language 
in the federal statute; it may also be established implicitly 
because the 
federal legislation is so comprehensive in its scope that it is 
inferable that 
Congress wished fully to occupy the field of its subject 
matter ('field pre-
emption'), or because state law conflicts with the federal 
law. Implied 
conflict pre-emption may be found when it is impossible 
for one to act in 
compliance with both the federal and state laws, or when 
'the state * * * 
'stan[ds] [sic] as an obstacle to the accomplishment and 
execution of the 
full purposes and objectives of Congress' . . .". 



(Guice v. Charles Schwab & Co., Inc., __ NY2d __, 1996 
WL 625571, 
quoting Barnett Bank of Marion County v. Nelson, __ US 
__, 116 S Ct 
1103, 1107-1108, quoting Hines v. Davidowitz, 312 US 55, 
67; see also, 
City of New York v. Job-Lot Pushcart, 88 NY2d 163, 170). 



In addition, the existence of an express preemption clause 
does not entirely 
foreclose the possibility of the existence of an implied 
preemption, as an 
express and implied preemption can exist in the same 
statute (Freightliner 
Corn. v. Myrick, __ US __, 115 S Ct 1483, 1488), and 
questions of 
preemption must be determined on a case by-case basis in 
order to 
ascertain "whether the dangers and hardships of diverse 
regulation justify 
foreclosing a State from the exercise of its traditional 
powers" (The 
Colorado Anti-Discrimination Comm. v. Continental 
Airlines, 372 US 
714, 719, see also, Hall v. DeCuir, 95 US 485). 



In the matter before us, compliance with the State statute 
does not interfere with compliance with the Federal statute 
since there is no Federal standard 
for what constitutes discrimination against airline 
employees under the 
ADA, nor would a finding, either in favor of, or against 
Delta, frustrate the 
accomplishment and execution of the full purposes and 
objectives of 
Congress (see, Hines v. Davidowitz, 312 US 52, 67, supra). 
Therefore, we 
conclude that the Deputy Commissioner erred, as a matter 
of law, when he 
determined that the preemption doctrine applied. 



Nonetheless, the determination of the NYSDHR dismissing 
petitioners' 
allegations of discrimination based upon a perceived or 
actual handicap, 
marital status, and age, as well as gender, should be 
confirmed. 



Petitioners' Claims that Delta's Weight Requirements 
Constituting Disability Discrimination 
To establish a prima facie case of discrimination, 
petitioners must show 
that: 1) they were members of the protected class; 2) they 
were not hired; 
3) they were qualified for the position; and 4) must either 
(a) show that 
they were replaced by a person who did not have their 
alleged disability; 
or (b) produce direct evidence of discriminatory conduct 
(McDonnell 
Douglas Corn. v. Green, 411 US 792, 802; Chertkova v. 
Connecticut 
General Life Ins. Co., 92 F 3d 81, 87; Citibank N.A. v. 
New York State 
Div. of Human Rights, AD2d _ , 643 NYS2d 68; see also, 
Mayer v. 
Monton Cork Corp., 126 AD2d 526; Bockino v. 
Metropolitan Transp. 
Auth., AD2d , 638 NYS2d 137). Once petitioners have 
made out a prima 
facie showing of discrimination, the burden shifts to 
respondent to produce 
evidence that petitioners were not hired based upon valid 
business reasons 
which were independent of discriminatory conditions 
(Miller Brewing Co. 
v. State Div. of Human Rts., 66 NY2d 937; Mayor v. 
Monton Cork Corp., 
supra). 



Executive Law Sec. 296 (1)(a) provides, in pertinent part, 
that: 



It shall be an unlawful discriminatory practice . . . [f]or an 
employer . . . 
because of the . . . disability . . . of any individual, to refuse 
to hire or 
employ or to bar or to discharge from employment such 
individual . . .. 
Executive Law Sec. 292 (21) defines disability as: 


(a) a physical mental or medical impairment resulting from 
anatomical, 
physiological or neurological conditions which prevents the 
exercise of a 
normal bodily function or is demonstrable by medically 
accepted clinical 
or laboratory diagnostic techniques or (b) a record of such 
an impairment 
or (c) a condition regarded by others as such an 
impairment, provided, 
however, that in all provision of this article dealing with 
employment, the 
term shall be limited to disabilities which do not prevent 
the complainant 
from performing in a reasonable manner the activities 
involved in the job 
or occupation sought or held. 



First, petitioners have failed to show that they are members 
of a protected 
class pursuant to the New York Human Rights Law. In this 
respect, 
petitioners do not claim, nor does the evidence support the 
position, that 
they suffer from a "medical impairment" which restricts 
their "normal 
bodily function" or is manifested in "medically accepted 
clinical or 
laboratory diagnostic techniques" as provided under the 
Executive Law. 



Petitioners herein do not claim that their weight limited 
their actions or 
abilities. 



In New York State Div. of Human Rights v. Xerox Corp. 
(65 NY2d 213), 
the Court of Appeals held that since the plaintiff's obese 
condition "was 
clinically diagnosed and found to render her medically 
unsuitable", it 
could constitute an impairment and, therefore, a disability 
within the 
meaning of the statute (see, Underwood v. Trans World 
Airlines, Inc., 710 
F Supp 78, 84). It is worthy of note that the plaintiff in 
Xerox Corp., a 
computer programmer, was 5'6" tall and weighed 249 
pounds, a condition 
which defendant's own physician diagnosed as "gross 
obesity", an 
abnormality. 



As noted by District Judge Leisure in Trans World Airlines, 
the difference 
between "obesity" and being "overweight" is not merely 
one of semantics. 
In the matter before us, petitioners do not allege conditions 
which amount 
to obesity and they fail to submit any proof that they have 
been clinically 
observed as having an "abnormal medical condition" or that 
they are 
medically incapable of meeting Delta's weight requirements 
due to an 
underlying medical problem. In conclusion, plaintiffs have 
failed to 
establish that they fall within a class of persons protected 
by the Human 
Rights Law and that Delta intended to discriminate against 
overweight 
women. 



Delta's Weight Requirements and Their Relationship To 
Petitioners' Ace 
and Gender Discrimination Claims Petitioners contend that 
they failed to meet Delta's weight guidelines 
because they have "large framed bodies" or because they 
are older and 
Delta's weight/height chart only includes weight 
expectations for small 
and medium framed women without concern for the 
individual's age, 
whereas older people are apt to be heavier. Therefore, 
petitioners conclude 
that Delta's weight requirements discriminate against 
women with large 
framed bodies, as well as older women. 



Here, petitioners have failed to offer substantial proof 
buttressing their 
claims that age is a major factor in weight gain, that Delta's 
weight 
restrictions have had a disparate impact upon-older 
employees, or that 
Delta has used its restrictions to avoid hiring older 
individuals. Indeed, 
Delta submits evidence which indicates that it relied 
heavily on seniority 
to employ flight attendants, and that its flight attendants 
average well over 
forty years old. 



Petitioners have also failed to demonstrate that Delta's use 
of weight standards constitutes sex discrimination. Under 
both New York and Federal Law, it is established that 
employees are entitled to impose rules 
and regulations governing the appearance of their 
employees (see, Matter 
of Page Airways of Albany Inc. v. New York State Div. of 
Human Rts., 39 
NY2d 877; Rogers v. American Airlines, Inc., 527 F Supp 
229). In Page 
Airways, the Court of Appeals stated that: 



Although the prohibitions against discrimination in 
employment based on 
sex extend not only to hiring but to conditions and 
privileges of 
employment as well (Executive Law Sec. 290, et seq.), we 
do not believe 
that an employer unlawfully discriminates when he 
establishes a 
reasonable grooming policy which may be said to 
differentiate between 

male and female. Employers, particularly those whose 
business involves 

contact with the public should be free to express and act 
upon a concern 

with the image which their employees communicate by 
their appearance 

and demeanor. 



(Id. at 878).



In the matter at bar, there is no evidence in the record that 
Delta intended 

to deprive one sex of equal opportunity or treatment, or that 
the weight 

requirements were somehow applied in a discriminatory 
manner. In fact, 

Delta has submitted evidence that approximately 90% of its 
flight 

attendants are female, thereby erasing petitioners' claim that 
the weight 

charts were somehow utilized to discriminate against 
women, as no 

disparate impact toward females can be shown whatsoever. 
Therefore, 

petitioners' claim of sex discrimination fails. 



With regard to petitioner Semeniuk's assertion that she was 
discriminated 

against due to a disability, specifically that she was 
afflicted by the Epstein 

Barr Virus, we disagree. The Agreement between Pan Am 
and Delta 

provided, inter alia, that any Pan Am employee who wished 
to be 

considered eligible to be hired by Delta must be ready, 
willing and able to 

return to work on or before November 1, 1991. Semeniuk, 
having been 

placed on long-term disability, was unable to return to work 
on or before 

November 1, 1991 and therefore did not fall within the 
terms of the 

Agreement. Semeniuk, therefore, was not hired due to a 
nondiscriminatory 

business reason. 



Delta's Pre-Employment Inquiries



Lastly, petitioners maintain that it is always, without 
exception, unlawful 

to ask pre-employment questions related to age, race, creed, 
color or 

national origin. However, it is only unlawful for an 
employer "to make any 

inquiry in connection with prospective employment, which 
expresses 

directly or indirectly, any limitations, specification or 
discrimination as to 

age, race, creed, color or national origin, sex, or disability 
or marital status, 

or any intent to make any such limitation . . ." (Executive 
Law Sec. 

296[1][d]). 



Thus, such inquiry alone is not discriminatory, the inquiry 
must express a 

"limitation, specification or discrimination" (Matter of New 
York Times v. 

City of New York Comm. on Human Rights, 41 NY2d 345, 
349; 

Alexander's, Inc. v. White 115 AD2d 424, 426), and that an 
"inference . . . 

must be a reasonable conclusion flowing logically from 
proven facts" 

(Alexander's Inc. v. White, supra, at 426). 



In the matter at bar, the NYSDHR's findings that there was 
discriminatory 

intent must be vacated as they are not supported by 
substantial evidence. 

The record, when viewed as a whole, does not support a 
conclusion that 

the questions, either expressly or intentionally, led to 
petitioners not being 

hired. In fact, none of the interviewers recommended that 
any of the 

petitioners not be hired, and all of the petitioners received 
very good 

reviews, some of which can be classified as "glowing". As 
a result, the 

only reasonable inference which can be drawn is that 
petitioners were not 

hired due to their failure to meet Delta's weight guidelines, 
or, in the case 

of Semeniuk, due to her ineligibility under the Agreement. 



With regard to petitioner Luedke, we find, as did the 
NYSDHR, that she 

was, in fact, offered a position with Delta, but turned it 
down, choosing 

instead to remain with Pan Am, apparently not anticipating 
its total, 

ultimate demise. Luedke's present assertions, that she 
turned down the 

Delta offer because she found it "vague" are simply 
insufficient to 

overturn the NYSDHR findings. 



Accordingly, the determination of the NYSDHR dated 
September 18, 

1995, insofar as it dismissed the claims of discrimination 
on the basis of 

disability by petitioners Alesci, Brown, Grob, Kennan, 
Lloyd, Luedke, 

Martinez, Pires, Semeniuk and Spilios, on the basis of age 
by petitioners 

Alesci, Brown, Grob, Kennan, Lloyd, Luedke, Martinez, 
Pires, Semeniuk 

and Spilios, on the basis of marital status by Alesci, Brown, 
Kennan, 

Martinez, Pires, Semeniuk and Spilios, on the basis of race 
by petitioner 

Brown, on the basis of sex by petitioners Alesci and 
Spilios, on the basis 

of national origin by petitioners Kennan, Luedke and Pires, 
and on the 

basis of sex by petitioner Semeniuk, should be confirmed, 
the individual 

petitioners' application denied, and the proceeding brought 
pursuant to 

CPER article 78 (transferred to this Court by order of 
Supreme Court, 

New York County [Leland DeGrasse, J.], entered on or 
about January 12, 

1996), dismissed, without costs; the determination insofar 
as it sustained 

claims of discrimination on the basis of national origin by 
petitioners 

Kennan, Luedke and Pires, and on the basis of sex by 
petitioners Brown, 

Grob, Kennan, Martinez and Semeniuk due to improper 
pre-employment 

inquiries, and on the basis of sex by petitioners Brown, 
Grob, Kennan and 

Martinez, and awarded these petitioners relief, including 
back pay and 

various amounts of damages for mental anguish and 
humiliation, should 

be annulled, the petition of Delta Air Lines should be 
granted to the extent 

indicated, and the proceeding brought pursuant to CPLR 
article 78 

(transferred to this Court by order of the Supreme Court, 
New York 

County [Leland DeGrasse, J.], entered on or about January 
2, 1996) should 

be disposed of accordingly, without costs. 



All concur except Rosenberger, J.P. and Mazzarelli, J. who 
dissent in part 

and concur tin part in an Opinion by Mazzarelli, J. 

MAZZARELLI, J. (dissenting in part, concurring in part) 

I agree with the majority that the Deputy Commissioner 
committed errors 

of law to the extent that he found that Federal law preempts 
various claims 

at issue in these proceedings. However, as explained below, 
I dissent from 

those portions of the majority opinion which, in my view, 
disregard the 

substantial evidence of sex, age and disability 
discrimination committed 

by Delta Air Lines, Inc. ("Delta"). 



These two Executive Law Sec. 298 proceedings were 
transferred to this 

Court by order of the Supreme Court pursuant to CPLR 
7804 (g) in order 

that we might determine whether the determination of the 
New York State 

Division of Human Rights ("NYSDHR") was, "on the 
entire record, 

supported by substantial evidence" (CPLR 7803[4]). 
Initially, it bears 

noting that because the legal question of preemption "could 
terminate the 

proceeding[s]" CPLR 7804(g), the Supreme Court should 
have initially 

addressed whether the NYSDHR's determination "was 
affected by an error 

of law" (CPLR 7803[3]) and should have "transferred" only 
to the extent 

that Delta's preemption argument lacked merit. 
Nevertheless, the record 

before us adequately presents both the legal and factual 
arguments of the 

various parties, and provides a sufficient basis for our 
review. 



The individual petitioners are all former flight attendants 
and pursers of 

Pan American World Airways, Inc. ("Pan Am"). They were 
all long-term 

Pan Am employees who had worked for at least 14 years or 
more at the 

time Pan Am ceased operating in December 1991. In 
August 1991, these 

individuals were interviewed for positions with Delta for 
placement at 

Delta's New York base at John F. Kennedy International 
Airport pursuant 

to an asset purchase agreement between Delta and Pan Am. 
The agreement 

provided that Delta would hire thousands of Pan Am 
employees based on 

certain criteria, including: seniority; language proficiency; 
personal 

interview; and satisfaction of the least restrictive of either 
the Delta or Pan 

Am small to medium frame weight standards contained on 
a height/weight 

chart. After these interviews were conducted, which 
included a medical 

examination, 7 of the individual petitioners were found by 
Delta to satisfy 

all requirements except the weight standard.1/ Two others 
met Delta's 

weight standards; Ms. Luedke was offered Delta 
employment, but 

declined to accept it, choosing to remain a Pan Am 
employee; Ms. 

Semeniuk was not offered a position, according to Delta, 
because she was 

not an eligible "active employee" at the time of the asset 
purchase. 



My disagreement with the majority stems not from its 
preemption 

analysis, nor even from its view of most of the claims 
pressed by the 

individual petitioners. Where I part company with my 
brothers is in their 

view that Delta's weight charts constitute a non-
discriminatory grooming 

standard under the circumstances of this case. It should be 
made clear at 

the outset that in no case was a disqualified applicant 
considered so 

overweight that her or his ability to carry out safely the 
tasks of being a 

flight attendant or purser was somehow jeopardized. 
Reduced to its core, 

Delta's argument is that its weight charts enable it to ensure 
"a 

professional, attractive, uniformed appearance." In other 
words, Delta's 

decision not to hire these petitioners solely for being a few 
pounds 

overweight according to what is, at best, an arbitrary weight 
chart based on 

subjective views on how much women should weigh in 
relation to men, is, 

in the majority's view perfectly legal. This, however, is not 
the law in New 

York. Rather, in my view, the petitioners clearly 
established that the charts 

were used in a manner that was discriminatory under New 
York's Human 

Rights Law. If the majority is correct that this is the law, it 
should not be. 



The court should not sanction the use of what may appear 
to be neutral 

criteria but really are no more than a mask for irrational 
prejudices about 

how members of one sex should appear. Accordingly, I 
dissent. 



First, it should be observed that Delta's attempt to achieve 
an "attractive, 

uniformed appearance" based on weight charts is flawed at 
the outset. As 

was amply demonstrated at trial by the unrebutted expert 
testimony, 

different individuals weighing the same might, due to 
muscle and fat 

ratios, and to differing body frames, have completely 
different 

appearances. Moreover, as the expert explained, because of 
various 

phenomena, such as edema, body weight can fluctuate 
several pounds 

within the same day, let alone within days. Clearly, Delta's 
allegedly 

neutral criteria cannot not achieve their stated goal. Indeed, 
at the time of 

trial, Delta had already placed an indefinite moratorium on 
the use of its 

weight charts. 



A public hearing was commenced on July 29, 1994 and 
continued until 

August 11, 1994 before the then-Chief Administrative Law 
Judge ("Chief 

ALJ"). By Recommended Findings of Fact, Opinion, 
Decision, and Order 

dated December 30, 1994, the Chief ALJ found that 
petitioners' claims 

were not preempted by Federal law; that the petitioners 
were discriminated 

against on the basis of their age or their actual or perceived 
disability 

and/or their gender; that respondent's pre-employment 
physical 

examination violated the Human Rights Law as well as the 
rights of the 

petitioners; that respondent's weight charts and pre-
employment physical 

examinations were not bona fide occupational 
qualifications; and that 

respondent had made unlawful inquiries of petitioners 
concerning such 

things as their age, disability, marital status, gender, or 
national origin, and 

recommended an award of back pay, damages for mental 
anguish and 

humiliation, and instatement with Delta. 



The Deputy Commissioner, by Notice of Order After 
Hearing dated 

August 23, 1995 and by subsequent Corrected Notice of 
Order After 

Hearing dated September 18, 1995, rejected a majority of 
the Chief ALJ's 

recommended findings of fact and conclusions. The Deputy 
Commissioner 

concluded that petitioners' claims of discrimination on the 
basis of their 

age or actual or perceived disability or marital status were 
preempted by 

the Federal Airlines Deregulations Act ("ADA"). He further 
rejected 

petitioners' claims of discrimination on the basis of race 
and/or national 

origin, found in favor of petitioners' claims of 
discrimination on the basis 

of gender, and found in favor of petitioner's claims of 
unlawful pre-

employment inquiry concerning petitioners' national origin 
or gender. The 

Deputy Commissioner adopted the recommended award of 
back pay but 

significantly reduced the damages for mental anguish and 
humiliation. It is 

this order which is reviewed in these proceedings. 



In my view, the majority correctly finds that the ADA has 
as its principal 

purpose the prevention of State regulation of airline rates 
and routes in the 

face of Federal deregulation. I agree, therefore, that nothing 
in the ADA 

can be fairly read as preempting this State's laws against 
discrimination in 

employment. Thus, while challenged determinations of the 
Deputy 

Commissioner based on substantial evidence should not be 
set aside too 

readily, to the extent that the Deputy Commissioner 
erroneously 

concluded that the Human Rights Law is preempted by the 
ADA, and 

therefore dismissed certain claims, this is an error of law. 



Although some of the findings of discrimination made by 
the Chief ALJ, 

which were then overturned by the Deputy Commissioner, 
could arguably 

have been reached on this record on their merits, "this 
Court will not 

substitute its judgment for that of the Commissioner" even 
if "a contrary 

decision may arguably be reasonable" (Ebasco Services, 
Inc. v. New York 

State Division of Human Rights et al., App. No. 59373, 
AD2d , 1996 WL 

710642 [1st Dept. Dec. 10, 1996]). Similarly, the findings 
of 

discrimination which the Deputy Commissioner did uphold 
should not be 

lightly cast aside. In rejecting the determinations of 
discrimination by the 

Deputy Commissioner, the majority substitutes its 
judgment for that of the 

factfinder and for that of the Chief ALJ and Deputy 
Commissioner, whose 

expertise includes ferreting out and remedying illegal 
employment 

discrimination. 



Turning then, to the areas of disagreement with the 
majority, I begin with 

the observation that the New York Human Rights Law 
states, in pertinent 

part, that: 



It shall be an unlawful discriminatory practice ... [f]or an 
employer ... 

because of disability ... to refuse to hire or to bar or to 
discharge from 

employment such individual or to discriminate against such 
individual. . . 



(NY Exec. Law Sec. 296[1][a}). A disability has been 
defined to include 

physical, mental, or medical impairments resulting from 
anatomical, 

physiological, or neurological conditions, including being 
overweight 



(State Div. of Human Rights v. Xerox Corp., 65 NY2d 213; 
NY Exec. 

Law Sec. 292[21]). As the Court of Appeals explained, 

We have found nothing in the statute or its legislative 
history indicating a 

legislative intent to permit employers to refuse to hire 
persons who are 

able to do the job simply because they have a possibly 
treatable condition 

of excessive weight. 



(State Div. of Human Rights v. Xerox Corp., supra, at 220). 
Thus, the 

record here clearly established a prima facie case of 
discrimination based 

on perceived or actual disability. 



In addition, Delta's weight charts were, as the record bears 
out, nothing 

more than a pretext for age and sex discrimination. The 
expert testimony 

at the hearing explained what anyone with life experience 
knows, that as 

one passes from one decade to the next, one is apt to be 
heavier. The 

failure of the weight charts to adequately account for age as 
a substantial 

factor in weight gain means that what appears on its face to 
be an age-

neutral criterion is a pretext for illegal age discrimination. 
Moreover, 

while, as the majority points out, the use of separate weight 
charts for men 

and women has been upheld, here the weight restrictions 
were not applied 

in a non-discriminatory manner. In my view, the record, 
taken in its 

voluminous entirety, substantially establishes that Delta 
discriminated 

against women, and more particularly older women. Thus, 
the Deputy 

Commissioner's order should be confirmed in part and 
annulled in part to 

the extent it is inconsistent with this reading of the record 
with respect to 

the various petitioners' claims of discrimination based!upon 
a perceived or 

actual disability, sex, and age (300 Gramatan Avenue 
Associates v. State 

Division of Human Rights, 45 NY2d 176). Moreover, the 
damages awards 

ordered by the Deputy Commissioner are substantially 
based on the expert 

testimony adduced at trial and should be confirmed. 



Accordingly, I dissent to the extent indicated. 



THIS CONSTITUTES THE DECISION AND ORDER OF 
THE 

SUPREME COURT, APPELLATE DIVISION, FIRST 
DEPARTMENT. 



ENTERED: DECEMBER 31, 1996



/s/



DEPUTY CLERK



CLERK



ENDNOTE



1/ Petitioners Brown, Grob, Kennan, Lloyd, Martinez, Pires 
and Spilios.