The opinion
*70 Dissenting Opinion by
Judge Williams, Jr. :
I must respectfully dissent, because I do not perceive that tbe employer has met its burden of establishing a legitimate, nondiscriminatory reason for denying employment to this complainant.
The Commission found that:
26. The Complainant was, from a medical standpoint, capable of performing all of .the laboring tasks required of trackmen despite the fact that he had only one eye.
The majority nevertheless concludes that Amtrak should not be required to hire the complainant, since it has met its burden of .proving that the complainant, as a trackman, “would pose a demonstrable threat of harm to the health and safety of others.” 16 Pa. Code §44.4 . (Emphasis added.) I submit that this assertion is not supported by the record. Rather than showing demonstrable harm, Amtrak has argued the possibility of harm, and the majority has transmuted that possibility into an actuality — it has replaced the above-quoted finding of fact with a determination that the complainant cannot perform the tasks of trackman.
Ours has never been a system of jurisprudence in which predictions and forebodings unsupported by the evidence has substituted fo.r facts and proof; it should not now become one. It sometimes appears that the judiciary accords more deference to the fact-finding of those agencies dealing in highly technical fields than to those which regulate the more, mundane areas of existence, in which every person has a modicum of expertise. ■ I submit that in this instance that impermissible slippage into the role of fact-finder has occurred.
The majority has also voiced a concern for the employer’s civil liability for accidents. I contend that that concern rests on the assumption that the com *71 plain-ant does not have the phsyical capacity to perform the requisite tasks, again an assumption not supported by the evidence.