I agree with the majority that the Executive 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 § 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^]” (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, seven of the individual petitioners were found by Delta to satisfy all requirements *144except the weight standard.* 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 nondiscriminatory 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.
*145A 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 preemployment physical examination violated the Human Rights Law as well as the rights of the petitioners; that respondent’s weight charts and preemployment 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 Executive 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 Executive 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 Airline 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 petitioners’ claims of unlawful preemployment inquiry concerning petitioners’ national origin or gender. The Executive 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 Executive Deputy Commissioner based on substantial evidence should not be set aside too readily, to the extent that the Executive 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.
*146Although some of the findings of discrimination made by the Chief ALJ, which were then overturned by the Executive 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 Servs. v New York State Div. of Human Rights, 234 AD2d 80, 81). Similarly, the findings of discrimination which the Executive Deputy Commissioner did uphold should not be lightly cast aside. In rejecting the determinations of discrimination by the Executive 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 employ or to bar or to discharge from employment such individual or to discriminate against such individual” (Executive Law § 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; Executive Law § 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, *147here the weight restrictions were not applied in a nondiscriminatory 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 Executive 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 Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). Moreover, the damages awards ordered by the Executive Deputy Commissioner are substantially based on the expert testimony adduced at trial and should be confirmed.
Accordingly, I dissent to the extent indicated.
Kupferman and Nardelli, JJ., concur with Tom, J.; Rosenberger, J. P., and Mazzarelli, J., dissent in part and concur in part in a separate opinion by Mazzarelli, J.
Determination of the New York State Division of Human Rights, dated September 18, 1995, insofar as it dismissed certain claims of discrimination, confirmed, the individual petitioners’ application denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County, entered on or about January 12, 1996) dismissed, without costs; the determination insofar as it sustained certain other claims of discrimination on the basis of national origin and sex, and awarded certain petitioners relief, including back pay and various amounts of damages for mental anguish and humiliation, annulled, the petition of Delta Air Lines granted to the extent indicated in this Court’s opinion and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County, entered on or about January 2, 1996) disposed of accordingly, without costs.
Petitioners Brown, Grob, Kennan, Lloyd, Martinez, Pires and Spilios.