In order to withstand judicial review, a finding that a prospective employer discriminated against a person by failing to hire him or her because of a "disability" within the meaning of Executive Law § 296 (1) (a) must be supported by substantial evidence to sustain, inter alia, the Commissioner's finding that the disability did "not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held" (Executive Law § 292).
In this case, there is no dispute that complainant Todd Rohling was on actual paid disability leave from his employment at General Electric based on his serious back problems at the time he sought a position with petitioner. Complainant cannot contend that he was entitled to disability leave from his then current employer, which required that he be actually unable to perform his duties at that job, and claim that, at the same time, his "disability" was within the protection of the Executive Law, i.e., that it did not prevent him from reasonably performing his duties at the job sought. Thus, petitioner cannot be held to have discriminated against complainant based on its failure to offer him immediate employment because of his disability.
Concur — Sullivan, J.P., Ellerin, Rubin and Williams, JJ.