Older Lifeguard's Swimsuit-Based Claim Resuscitated

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By Patrick Dorrian

May 5 — A long-time lifeguard at New York's Jones Beach can pursue claims that the state's refusal to allow him to take its annual rehire test in his choice of swimwear was based on his age—late 50s, a state appeals court ruled.

According to Roy Lester, he wasn't permitted to wear a “jammer”—a bicycle-short style swimsuit—during rehire tests in 2007 and 2008, when he was 57 and 58 years old.

Instead, the New York State Office of Parks, Recreation and Historic Preservation refused to let him test because he wasn't wearing his state-issued lifeguard uniform.

The New York Supreme Court's Appellate Division held that a jury should decide whether the state allowed younger applicants to test in all different types of swimsuits, as Lester alleges, while not permitting Lester, the oldest applicant, to test in a jammer.

According to Lester, the bicycle-short style swimwear is commonly worn by older men.

Partially reversing a lower court, the appeals court found that the state didn't conclusively show it had legitimate, nondiscriminatory reasons for refusing to let Lester test in a jammer.

However, the lower court properly denied Lester's cross motion for summary judgment, the appeals court added. Lester failed to eliminate all triable issues as to whether the state's justification for not permitting him to test in a jammer was a pretext for age discrimination in violation of the New York State Human Rights Law, the court said.

Justices Leonard B. Austin, Jeffrey A. Cohen, Robert J. Miller and Colleen D. Duffy joined the opinion.

Lester & Associates P.C. represented Lester. The New York attorney general's office represented the state.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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