— Determination of the State Human Rights Appeal Board, dated October 20, 1978, affirming decision and order of the State Commissioner of Human Rights dated January 12, 1978 finding that petitioners had discriminated against respondent (complainant) because of disability in violation of Human Rights Law (Executive Law, art 15), confirmed, without costs, and petition dismissed.
We find there is substantial evidence in the whole record supporting the commissioner’s decision and order affirmed by the appeal board (300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176, 179-182). Complainant satisfactorily established by his employment history and a physical test (in which he received a grade of 86%, the passing grade being 70%), that he had the physical requirements to perform the duties of a laborer, and as a result was placed on the promotion list.
Thereafter, he was medically examined and X rays of his back showed "degenerative osteoarthritis” and narrowing of an intervertebral disc. Testimony by an orthopedic specialist elicited the opinion that complainant’s back condition is such as to cause backaches, increase complainant’s susceptibility to back injuries and delay the normal healing processes. The record establishes that this witness did not examine complainant.
It was petitioners’ burden to come forward with evidence to rebut complainant’s showing of a prima facie case of discrimination (see McDonnell Douglas Corp. v Green, 411 US 792, 802-805). We cannot say on this record that the medical opinion offered by petitioners’ witness, standing alone, has overcome the uncontested demonstration of complainant’s ability to meet the job requirements of laborer.
Moreover, employers are required to evaluate a disabled applicant or employee on his merits, hiring or discharging him only if he can or cannot in fact perform the duties of the job in question. The central concern is the capacity of the individual (Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 52, affd 35 NY2d 673).
For the above reasons, we are unable to agree with the view of our dissenting brother that complainant’s medical condition is so related to his ability to "engage in the activities involved in the job” (Executive Law, § 292, subd 21) as to preclude complainant from appointment. Concur — Birns, Fein, Lupiano and Yesawich, JJ.
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