(dissenting). The majority opinion carries the reader along step by step, case by case, to a conclusion which I think is inconsistent with the cases upon which the majority relies.
The majority imposes on Boynton a minimal burden to justify its unwritten rule that it will not hire persons who have the use of only one arm. “The burden to be borne by Boynton,” states the majority, “was to show that its hiring standard bore a rational relationship to the safety obligations imposed upon a common carrier of passengers and that the standard used by Boynton was not the result of an arbitrary belief lacking in objective reason or rationale.” The majority says that for Boyn-ton’s rule to be reasonable and lawful “it is enough [for Boynton] to show that elimination of the hiring policy might jeopardize the life of one more person than might otherwise occur under the present hiring practice.” No lighter burden for Boynton could be devised. Yet Boyn-ton does not offer evidence to meet this burden. All that Boynton does show is the existence of a Federal Highway Administration regulation requiring that drivers of certain vehicles have the use of two arms.
The majority concedes that the Federal Highway Administration regulation is the only relevant evidence Boynton produces to show that its hiring standard bears a rational relationship to its safety obligations. The majority concludes that the very existence of this federal regulation means that there is a rational relationship between Boynton’s hiring rule and safety. The very existence of this federal regulation is apparently sufficient, in the majority’s view, to show that eliminating the requirement that a driver have the use of two arms might jeopardize the life of one more person. The majority reaches this conclusion reasoning that “given the high degree of care required of common carriers and the *421acknowledged expertise of the federal agency upon whose regulations Boynton relies, it seems clear that [Boyn-ton’s] rule requiring drivers to have two arms is both rational and reasonably tailored to advance safety considerations.’ The majority offers no authority or further explanation for this proposition.
It is not clear to me why the majority believes that Boynton’s hiring rule is rational and reasonably tailored to safety considerations just because a federal agency has a regulation on its books which is not applicable to Boynton. The majority’s conclusion becomes especially unclear in view of the fact that the majority opinion places heavy reliance on decisions of federal courts in which the federal courts did not presume the validity of the particular federal regulations in issue in those cases but rather reviewed the evidence on which the particular regulations were based to determine whether the regulations were “rationally supported,” or were “rationally based on safety considerations.” See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, quoted at p. 419 of the majority opinion; Monnier v. U.S. Dept. of Transportation (E.D. Wis. 1979), p. 415 of majority opinion. Thus the majority opinion gives greater deference to a Federal Highway Administration regulation, which is not binding on Boynton or on this state, than federal courts give to federal regulations which are intended to be binding on the parties before the federal courts.
This court is not obligated to accept the Federal Highway Administration regulation on face value. Federal and state agencies have been known to err. The federal court decisions relied upon by the majority illuminate the majority’s error in failing to require Boynton to show that the federal regulation was rationally based on safety considerations.
*422In Monnier, which the majority cites, the employment of a diabetic interstate truck driver was terminated pursuant to federal regulations prohibiting diabetics from driving. The driver challenged the regulations. Judge Warren of the Eastern District Federal Court of Wisconsin noted that the Federal Highway Administration reports on which the driver regulations were based discussed the relationship of the disease to the specific work environment of the interstate truck driver and summarized recent studies indicating a significantly higher accident risk for diabetic drivers versus the general public. The district court judge further noted that the Federal Highway Administration had solicited comments on a draft of the regulations relating to diabetics and that the American Diabetic Association supported the regulation. In Monnier, the court did not presume that a regulation of the Federal Highway Administration was valid; the court reviewed the evidence upon which the agency promulgated the regulation and concluded that the regulation was a rational safety rule, stating:
“In viewing the question of whether the diabetes rule is rationally based, this Court is led to review the evidence submitted to the administrative agency. Although there were comments submitted to the Federal Highway Administration recommending a liberalization of the rule, the agency’s determination, as indicated by the reports of groups such as the American Diabetes Association, is not without support. Furthermore, in commenting upon the evidence submitted to the Federal Highway Administration, the Administration indicated that the reports of many of the proponents of the present rule were supported with documentation and as such were given more weight in the final determination. ...”
To uphold Boynton’s hiring rule, this court has to resort to a “presumption” that the Federal Highway Administration regulation is a rational safety rule, because the record in this case and the law books and material available to the majority are devoid of any evidence or *423any rationale upon which the Federal Highway Administration based its regulation. Thus this court, unlike the federal court in Monnier, cannot determine whether the federal regulation was “rationally supported” or “rationally based on safety factors” and whether the application of the federal regulation to Boynton, an intra-city taxi-cab company, is a rational safety measure. As Judge Bablitch of the court of appeals pointed out, the reasonableness of the federal regulation in question has never been judicially tested and it is not clear that it could survive a test against the legislative mandate that the handicapped are to be integrated into the work force unless it is demonstrated that they are unable to perform a given job. If this court were going to apply a presumption, it ought to presume that because Godfried is fully licensed and qualified to drive a cab under Wisconsin law, he is competent to drive a cab.
The majority opinion leaves the reader with the impression that somehow it is unfair to ask Boynton to show that it has “a rational basis in fact to believe” that elimination of its rule would jeopardize the well-being of one more person. The majority opinion leaves the reader with the impression that somehow it is unfair to ask Boynton to show that the Federal Highway Administration regulation is rationally based on safety considerations and that non-adherence to the regulation “will increase the likelihood of risk of harm to its passengers.” I do not think it is unfair to ask Boynton to furnish support for a hiring rule which on its face appears to be a discriminatory stereotypical rule.
I think the reader’s impression that it would be unfair to ask Boynton to justify its rule comes from the majority’s repeatedly saying “Boynton relied upon this federal safety standard.” The majority opinion (pp. 418, 419) states that “The uncontested proof that Boynton relied upon this federal safety standard satisfied its appro*424priate burden of proof.” The impression left with the reader by such statements in the majority opinion is that Boynton, before adopting its unwritten hiring rule, carefully explored the question of hiring one-armed drivers, studied the federal regulations, and then, relying on the expertise of the Federal Highway Administration and its regulation, concluded that safety considerations mandate that it adopt a rule not to hire drivers who have the use of only one arm. But Boynton never claims that this is how its rule evolved.
The Vice President of Boynton in charge of claims and personnel, who had been with the Boynton Cab Company for forty-nine years, testified several times that the sole basis for the company’s policy of not giving a one-armed person an application form for a job and of not hiring such a person under any conditions, was because the company “was afraid to put him on because of the responsibility and the highest degree of care and that with a man with one arm, we couldn’t win a case [in court] if we were 100 percent right.” Neither the Vice President of Boynton nor any other officer or employee of Boynton testified that Boynton relied on the federal regulation or any statistical or medical information in developing its hiring rule. The company was concerned only about whether it could win a lawsuit, if an accident occurred. Boynton has no one-armed drivers and had 350 accidents during 1975.
The federal regulation was introduced by Boynton’s counsel as part of Boynton’s legal argument to support its position that its hiring rule is rationally related to safety. Boynton’s counsel introduced the regulation at the end of the hearing, asking the Department of Industry, Labor & Human Relations and the courts “to take judicial notice” of the regulation, asking the Department and courts to rely on the federal regulation as constituting the necessary link or the rational relationship between Boynton’s hiring rule and Boynton’s safety obli*425gations. It is not Boynton that relied with blind faith on the federal regulation in adopting its hiring rule. It is this court which relies with blind faith on the federal regulation in concluding that there is a rational relationship between Boynton’s hiring rule and Boynton’s safety obligations.
It is undisputed that Godfried was denied employment as a driver because of his physical handicap. It is also undisputed that there was no medical or statistical or other factual evidence to establish that Godfried himself was incompetent to drive a cab or to establish that Boynton had a rational basis in fact to believe that hiring one-armed drivers “might jeopardize the life of one more person than might otherwise occur” or might “increase the risk of harm to the well-being of its passengers and others.”
Because Boynton Cab Company failed to meet the very minimal burden which the majority places on it, I would affirm the decision of the court of appeals.
I am authorized to state that Justice Roland B. Day joins in this dissent.