Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
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 email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Lester_v_NY_Office_of_Parks_Recreation__Historic_Pres_No_20140383.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)