In which a swimmer's affidavit could have saved summary judgment

A part-time lifeguard at a state beach was prevented from taking the qualifying yearly swim test because he wanted to wear jammers, not a Speedo or other type of swimsuit issued by the State as part of the lifeguard uniform. The lifeguard sued for age discrimination - he's also a partner in a law firm - claiming that jammers are "a type of swimsuit commonly worn by older individuals" (sorry male triathletes!).

The State won summary judgment, the lifeguard appealed, and the Appellate Division, Second Department, reversed the dismissal of the complaint and reinstated the case. The court held that the State "failed to eliminate all triable issues of fact as to whether it had legitimate, nondiscriminatory reasons for refusing to allow the plaintiff to take the test for new hires in a 'jammer' swimsuit," which should have been the easiest thing in the world.

Writing as a swimmer, motions and appellate lawyer (albeit one unfamiliar with the record), and erstwhile qualifier for the State's lifeguard program, this ruling is almost painful. Jammers are frequently banned in open-water swim races, due to the potential for competitive advantage. It's impossible that the State couldn't have found an expert to establish this point - this article, for example, interviews three manufacturers on the issue. And how is it illegitimate or discriminatory to insist that a prospective lifeguard take the test in the uniform he'll be wearing when he's swimming toward a drowning person?

I'm guessing neither attorney on the State's brief is a swimmer. It's a helpful illustration of why lawyers need to be exhaustively familiar with our clients' work.