Can a discrimination case be based on required clothes? This is the main issue in a sex and age discrimination case pending in New York state court. The plaintiff, a 65-year-old bankruptcy attorney who moonlights as a lifeguard (or a lifeguard who moonlights as a bankruptcy attorney), claimed that to pass mandatory evaluations to work as a lifeguard, he was required to wear a revealing, Speedo-type swimsuit, which he refused to do. Plaintiff Roy Lester said he saw the Speedo requirement as a step to getting rid of older lifeguards.
“The older you get, the less skin you should show,” Lester told ABC News. He stated that he has always worn swim jammers, tight shorts that end above the knee. He showed up in 2007 for his annual test in his jammers so he could complete a rehire evaluation at Jones Beach on Long Island. The New York Office of Parks, Recreation, and Historic Preservation (“the Office”) insisted that he wear a Speedo and prohibited him from taking the test.
Lester Argued That the Office Had No Legitimate Basis to Refuse to Test Him
Lester claimed swimsuit regulations required lifeguards taking the qualifying test to wear boxers, briefs, or board shorts. He said he never encountered this regulation until 2007. Until that year, Lester said that he had worked at Jones Beach for decades, and wearing jammers during the test had never been a problem. Lester explained that board shorts and boxers were not practical for the test because they slow down swimmers. The lifeguard test has four timed swims, including a 100-yard swim, that potential lifeguards must complete in 75 seconds or less.
Lester has completed triathlons in his jammers and came in second during 2011’s National Lifeguard Championships. Without his jammers, Lester stated he would have to wear a Speedo. He told ABC, “Older people . . . prefer a more modest swimsuit and thank goodness they do. There’s a thing called aging, and there’s a thing called aging gracefully.” Because he could not take the test, Lester lost his post as chief negotiator of the lifeguard union at Jones Beach, and he started working for a private beach.
Lawsuit Survives Rough Legal Waters
Lester filed a complaint with the New York State Division of Human Rights in 2007. The agency dismissed his claim for lack of probable cause that Lester suffered discriminatory employment practices. The parks department claimed that of 271 lifeguards hired for the 2007 season, 80 were 40 to 80 years old, and six were the same age as Lester. Lester said that before the dismissal, the investigative agency never contacted him.
Lester attended the 2008 new hire lifeguard test, but the Office turned him away once again because he was wearing jammers. He filed suit in state court in 2009 with the new hire test the subject of the case. Procedurally, Lester has been swimming upstream ever since.
In his lawsuit, Lester asserted the following claims:
- The Office committed employment discrimination based on age and sex when it prohibited him from taking the test for new hires in 2008.
- Lester was the oldest applicant showing up for the new hire test but could not take it because he was wearing jammers, often worn by older swimmers.
- Younger applicants wore many different types of swimsuits, but the Office allowed them to take the test.
The New York State Supreme Court in Nassau County dismissed his case, but an appellate court reinstated it in 2011. The trial court dismissed his age claim in 2014 again on a motion for summary judgment, before hearing the merits of his case. In April, a state appellate court overturned that dismissal.
The appellate court ruled that the dismissal was improper because the Office failed to eliminate all “triable issues” of fact concerning whether it had legitimate, nondiscriminatory reasons for refusing to allow Lester to take the pre-employment test wearing his jammers.
Summing It Up
As part of the “burden-shifting” test a plaintiff can use to show evidence of discrimination, Lester would have to show four things:
- he was a member of a protected class (58 years old at the time),
- he applied for and was qualified for the job,
- he was rejected despite his qualifications, and
- he lost the job to others who were not members of his protected class.
In response, the defendant has to come up with a legitimate, nondiscriminatory reason for its refusal (no jammers allowed). At this point, since there appears to be a factual dispute as to whether the no-jammers rule for the test is legitimate, Lester’s lawsuit is still above water. Unless the parties settle the case, it may go to trial.
If you believe you have been discriminated against because of an unfair test or hiring process, contact our office so we can talk about the job opening and the application process. We will also discuss how the employer may have discriminated against you and how the law may apply in your case.
