Age discrimination case to head to trial

Roy Lester continues fight against ‘dress code’ for Jones Beach lifeguard test

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Two years after the dismissal of a lawsuit filed nearly a decade ago by Long Beach resident Roy Lester — who claimed age discrimination against older lifeguards like himself — he successfully appealed the decision, and his suit will move to a trial.

Lester, 66, a bankruptcy lawyer and former Long Beach school board president, has been a lifeguard since 1965, and for decades he worked at Jones Beach. But in 2007, he arrived at the Jones Beach Lifeguard Corps’ spring “rehire” test — at which guards are timed for a 100-yard swim in a pool and a quarter-mile run on a track — wearing jammers, a thigh-hugging swimsuit that resembles biking shorts. Lester was told he could not participate unless he wore either a Speedo or looser-fitting surfing shorts issued by the New York State Office of Parks, Recreation and Historic Preservation, which oversees the lifeguard corps.

“It’s all been set up to eliminate the older guys,” Lester said. “I [told them], ‘For 15 years I’ve been wearing this, and I’m not going to change now.’”

Lester said that jammers are widely used in competitive swimming, and were being worn by some of the older lifeguards to reduce the drag that looser-fitting suits create, which adds to the challenge of finishing the pool swim in under 1 minute, 20 seconds.

“This is a test for speed, and if you fail it, you lose your job,” Lester said. “You’re allowed one more try. You might have been there 50 years [but] if you fail the test twice … your job is gone. A [long] career down the tubes.”

Though most guards wear state-issued Speedos, which create little drag, for the test, Lester said that at his age, he wasn’t comfortable showing that much skin. An All-American triathlete in his age group, Lester told The New York Times in an article this week that he “could pass the test in jeans” but refused to take it as a matter of principle and lost his job.

He was shut down again in 2008, when he tried to take the Jones Beach rookie test in his jammers amid first-time applicants. He felt it was his responsibility to stand up for justice, he said, so he filed a lawsuit that year in Nassau County Supreme Court, accusing the state parks department of age discrimination.

“I have my law firm — I could do the fight,” said Lester, who is representing himself. “I wouldn’t ask anybody else to try to make that kind of a stand. They didn’t want to take the chance of losing their job. At that point, I had my kids at home and I [decided] that I can’t be telling my kids that you have to make a stand in life and then not do it when push comes to shove.”

The state argued that the jammers are “speed-enhancing” swimsuits that give those who wear them an unfair advantage in the pool, but Lester insisted there is no evidence that a swimmer is faster in jammers than in a Speedo.

In 2014, Nassau County Supreme Court Justice Michele Woodard granted the state’s motion to dismiss Lester’s claim, but he appealed, and the Appellate Division reversed the decision. A four-judge panel ruled that the parks agency had not established that it had a nondiscriminatory reason for excluding Lester from the test. A start date for the trial has not yet been determined, Lester said.

Paul Gillespie, Long Beach’s chief of lifeguards, said that unlike Jones Beach, Long Beach guards can wear anything they want for the timed 200-yard swim the city requires for them to remain on patrol.

“If they want to swim in baggies, they can swim in baggies,” Gillespie laughed. “If they want to wear three-quarter leotards, or whatever they wear, tights, they can do that. All our kids swim in their bathing suits, but I don’t see what the big thing is about [required suits]. I think it’s kind of ridiculous.”

Lester’s story has attracted attention around the world in recent years, most likely, he says, because it is about more than the type of swimsuit a lifeguard must wear for a test. Lester said he thinks the system of selecting lifeguards is too heavily based on speed, and he feels that the state — which operates Jones Beach — is disrespecting the experience that older lifeguards have.

“If you have a guy with 40 years of experience who misses the cutoff time by a hundredth of a second and you have a guy with two years of experience who passes it by a hundredth of a second, now there’s two hundredths of a second difference between the guy with 40 years and the guy with two years,” he said. “Who do you hire? And they said the guy with two years.”

Lester has worked as a lifeguard in Atlantic Beach for the past few years, but would love to go back to Jones Beach, where he said he made lifelong friends. He has received supportive messages from people around the world, he said, throughout his now years-long legal battle.

“People understand that experience in life counts,” he said. “The ocean changes not only every day, but every few minutes, and so you really have to know that spit of land that you’re lifeguarding.”