New York Law Journal, Lawyer's Age Bias Suit Over Lifeguard Swimwear Is Revived:
A Long Island bankruptcy attorney who lost his job as a summer weekend lifeguard after refusing to sport a Speedo [top photo] for his recertification test will be able to take his age discrimination suit to trial, an appeals court ruled.
Roy Lester [J.D., University of San Diego], 66, the principal at Lester & Associates in Garden City, has worked for decades at Jones Beach State Park, one of the more than 100 beaches supervised by the New York State Office of Parks, Recreation and Historic Preservation.
The state office requires lifeguards to take an annual exam that includes a timed swimming component. Lester said he prefers wearing a "jammer" [bottom photo] a bicycle-short style bathing suit that extends to just above the knees, to get a better time on the test.
But before the start of the 2007 season, the parks office prohibited Lester from taking the test while wearing a jammer rather than a Speedo, which is the state-issued uniform for lifeguards. He was not hired for the season.
Prior to 2007, the parks office did not have restrictions on the type of swimsuit applicants wore to take the test, according to court papers. Lester filed an age discrimination complaint with the Human Rights Division, which was dismissed for lack of evidence.
In 2008, he attempted to take the test for new hires while wearing a jammer, once again refusing to don a Speedo or wear state-approved boxers, briefs or board shorts. He was barred from the test.
Lester then sued the state for age discrimination, alleging that he was the oldest applicant taking the test and that the office banned him because he was wearing a swimsuit preferred by older people because of their modesty.
The state argued that it began requiring lifeguards to wear Speedos after discovering that weak swimmers were using "speed-enhancing swimsuits" such as jammers to pass the test's swim component, giving them an "unfair advantage" and preventing the parks office from accurately assessing their swimming abilities. ...
Lester claims the policy is designed to target older lifeguards, noting that lifeguards in other parts of the state are not subject to restrictions on the type of swimsuit they wear for employment tests. ...
In February 2014, Nassau County Supreme Court Justice Michele Woodard granted the state's motion for summary judgment to dismiss Lester's age discrimination claim. She ruled that the parks office had a legitimate, nondiscriminatory reason for requiring Long Island lifeguard applicants to wear an approved swimsuit for the exam.
Lester appealed and, on Wednesday, a panel of the Appellate Division, Second Department, reversed Woodard's decision in Lester v. State of New York, 10863/09. The panel ... ruled that the parks office was not entitled to summary judgment because it failed to prove that it had legitimate, nondiscriminatory reasons to bar Lester from the test for new hires while wearing a jammer.
ABA Journal, Law Partner Who Had Lifeguard Job Sees Age-Discrimination Suit Over Speedo Rule Revived on Appeal