dissents in the following memorandum: In this human rights proceeding, the State Human Rights Appeal Board affirmed an order of the State Commissioner of Human Rights, which reversed a finding of the hearing examiner that dismissed the complaint and determined that there had been no discrimination against the respondent on the ground of disability. The respondent was a motor vehicle operator in the Department of Sanitation, Bureau of Motor Equipment. He took a promotional test with the Environmental Protection Agency for the position of laborer. After a preappointment medical examination, he was notified that he was not medically qualified for the position of laborer because X rays of his back showed degenerative osteoarthritis. The notice of examination had specified that a "back condition” could be a possible cause of rejection for the position in question, obviously because it required lifting of weights. On the basis of the provisions of subdivision 21 of section 292 of the Executive Law, defining the type of disability, which would be an "unlawful discriminatory practice”, the Human Rights Appeal Board and its commissioner determined that the respondent had been discriminated against, and the petitioners, the City of New York, the Environmental Protection Agency, and the Department of Sanitation, applied for an order pursuant to section 298 of the Executive Law, annulling the said order. Subdivision 21 of section 292 *857specifically limits the application thereof to conditions "which are unrelated to the ability to engage in the activities involved in the job”. While there may be situations where the provisions of the Human Rights Law should take precedence over the job specifications as set forth by the city agencies (see Matter of Sontag v Bronstein, 33 NY2d 197; cf. State Div. of Human Rights v New York City Dept, of Parks & Recreation, 38 AD2d 25), it is obviously not discriminatory to expect good physical condition for a weightlifting laborer job. I dissent and would annul the determination, and reinstate the findings of the hearing examiner. My determination has no reference to the recent United States Supreme Court decision in Southeastern Community Coll, v Davis (442 US 397), which, however, could be considered as indicating an approach to this problem.