Aug. 18, 2011 -- A 61-year-old lifeguard is suing New York for age discrimination because he wasn't allowed to wear his preferred swimsuit during an annual qualification test.
Roy Lester of Long Beach, N.Y., has always worn swim jammers, tight shorts that end a couple inches above the knee. But in 2007, when he showed up to complete his re-hire evaluation at Jones Beach on Long Island, he says, the New York Office of Parks, Recreation and Historic Preservation didn't allow him to take the test.
The swimsuit regulations on the state parks department website say all lifeguards taking the qualifying test for Long Island beaches must wear boxers, briefs or board shorts, a regulation, Lester says, he had never encountered until 2007.
"The older you get, the less skin you should show," said Lester, who had been a lifeguard on Jones Beach for decades. "Basically, the state's been trying to get rid of the older guys. They really don't like older lifeguards."
Lester said the jammers had never been a problem in the past during the re-hire test. Neither board shorts nor boxers are an option, he said, because they inhibit speed, a key component of the timed test.
To qualify as a Long Island lifeguard, candidates must swim 100 yards in 75 seconds or less, in addition to taking three other timed tests.
Lester, who has completed triathlons in his jammers, recently came in second during this year's National Lifeguard Championships.
To maintain speed during the re-hire test, his only other option, he said, would be the revealing Speedo, a swimsuit he refuses to wear.
"Older people … prefer a more modest swimsuit and thank goodness they do," he said. "There's a thing called aging and there's a thing called aging gracefully."
The parks department said it cannot comment on pending litigation, but spokesman Dan Keefe said, "I can say we do not discriminate based on age."
Lester said other older lifeguards on Long Island want to wear jammers, too, but "I was the only one who stood up."
"I have three kids," he said. "I cannot talk the talk and not walk the walk."
As a result, he says he lost his post as chief negotiator of the lifeguard union at Jones Beach because he's now working for a private beach.
Lester's 2007 complaint was investigated by the New York State Division of Human Rights, according to an agency document. The agency dismissed the claim that year, saying there was "no probable cause" to believe the parks office engaged in discriminatory hiring practices.
Lifeguard Sues, Refusing to Wear Speedos
Of the 271 lifeguards hired for the 2007 season, 80 ranged in age from 40 to 80 years old, and six were the same age as Lester, the parks department said during the investigation.
"Therefore," the Division of Human Rights wrote, "it is not reasonable to believe that the respondent denied the Complainant the privilege of taking the rehire exam because of his age" which was, at the time, 57.
The Division of Human Rights never contacted him, and their rationale for dismissing the case "really doesn't make any sense," Lester told ABCNews.com.
He appealed, but his appeal was dismissed because it had been filed two days after the 60-day statue of limitations expired.
He tried to take the new hire lifeguard test in 2008, according to court documents, and was denied once again because he was wearing his jammers.
He sued again in 2009. This time his lawsuit focused on the new hire test, instead of the re-hire test. That case was also dismissed by the New York State Supreme Court in Nassau County.
Last week, however, the suit was reinstated by an appeals court.
Lester, a bankruptcy attorney who has been working as a lifeguard for the past two years at private Atlantic Beach on Long Island, is representing himself in the case, which is expected to go to trial later this year or next.
"I think I have a very strong case," he said. "It's just telling the truth of what happened."