By Jessica McElroy

Roy Lester believes in aging gracefully.  And in his opinion, a sexagarian lifeguard wearing itty-bitty man briefs does look not graceful.  Mr. Lester, 61, is a New York bankruptcy attorney who moonlights as a lifeguard at Jones Beach in Nassau County. In 2007, and then again in 2009, he sued the New York State Office of Parks, Recreation and History Preservation (NYSOPRHP) in state court claiming age and sex discrimination, arguing that he was forbidden from taking the lifeguard qualification test after he refused to don the required swimwear – either a tight-fitting Speedo, or a looser swimsuit which he felt would slow him down in the water.  According to sources, Mr. Lester claims that the rules requiring specific attire are designed to force out older lifeguards who would rather not show so much skin. He told the New York Daily News, “I wore a Speedo when I was in my 20s. But come on. There should be a law prohibiting anyone over the age of 50 from wearing a Speedo.”

Mr. Lester prefers to wear “jammers,” knee length lyrca shorts, which he has worn to past exams in his 40 years as a lifeguard. Mr. Lester claims that the jammers he wore to previous certification tests were not a problem until 2007 when at 57, he showed up to complete his re-hire evaluation.  To qualify as a Long Island lifeguard, candidates must complete a series of timed swim tests and are required to wear either boxers, briefs, or board shorts.  Jammers are not permitted.  Mr. Lester said that neither the board shorts nor the boxers are an option because they would cost him too much time during the test.  So his only other option were the briefs – and he refused to wear the Speedo provided to him.  When he returned in 2008, he was again prohibited from taking the test in jammers.

Mr. Lester initially filed his complaint against NYSOPRHP with the New York State Division of Human Rights in 2007.  The agency dismissed his discrimination claim, finding that there was “no probable cause to believe that… [NYSOPRHP] engaged in an unlawful discriminatory practice.” He tried to appeal this decision but his case was dismissed because the statute of limitations expired.  In 2009, Mr. Lester sued again in the Supreme Court of Nassau County claiming age and sex discrimination in prohibiting him from taking the test, but his complaint was dismissed once again.

On August 9, however, a New York appellate court found that the case was improperly dismissed and Mr. Lester will be heading back to court.

While the media focused on how the state’s dress code might have come as an unpleasant surprise to the older lifeguard candidates, they didn’t tell us:  Does being forced to wear the swimsuits required by the state of New York count as discrimination? Let’s find out.  

New York Executive Law § 296 – Unlawful Discriminatory Practices prohibits discrimination on the basis “of an individual’s age … [and] to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment.” The New York Court of Appeals has held that a claim brought under § 296 will be governed by the same burden shifting standard applied under Title VII of the Civil Rights Act of 1964, the federal anti-discrimination law.   In New York, terminated employees claiming discrimination must show that:

(1) they are members of the class protected by the statute;

(2) they were fired from their jobs;

(3) they were qualified to hold the positions from which they were fired; and

(4)  they were fired under circumstances that suggest a discriminatory motive.

If an employee can show that all of that is true, the burden then shifts to the employer to show that the employee was not fired for a discriminatory reason. The New York State Division of Human Rights noted during the investigation of Mr. Lester’s claim that of the 271 lifeguards hired in 2007, the year Mr. Lester filed his initial complaint, 30% ranged in age from 40 to 80 years old.  That hardly sounds like NYSOPRHP was only interested in hiring young lifeguards who look good in a Speedo.

Professor Arthur Leonard, who teaches Employment Discrimination at New York Law School, thinks that Mr. Lester’s claim seems frivolous.  “Embarrassment is not enough for a discrimination claim.”  He continued,  “If there are other people in his age category who are happy to take the test in whatever they ask them to wear, then he doesn’t really have an age discrimination complaint. He has a very individual complaint based upon his personal sensibilities.”  And according to the Daily News, the other lifeguards who showed up in jammers changed into the Speedo and all went swimmingly.

The Equal Employment Opportunity Commission permits an employer to establish a dress code that applies to all employees, and while the law makes exceptions for the employee’s religion, disability, and country of national origin, it does not do the same with regard to the employee’s age.

The facts indicate that a uniform dress code was put in place and all employees have the same swimsuit options. Mr. Lester’s experience as a lifeguard, though impressive and germane to the position, should not entitle him to any special exceptions from the rules.  Mr. Lester’s job as a New York state lifeguard is waiting for him, he just has to get over how he looks in a skimpy bathing suit.  It’s a problem most Americans have, not just Roy Lester.