New York (CNN) -- A lifeguard is suing New York State Parks for age-discrimination after a rule was put in placed that would have forced him to don swimwear he considered "not appropriate for a 61-year-old."
Roy Lester, 61, was a lifeguard at Jones Beach, Long Island for almost forty years until 2007 when the state instituted a new clothing requirement he considered discriminatory.
The rule, still in operation, requires that to be re-hired as a lifeguard, participants must wear either "boxers, briefs or board shorts" when completing a qualifying swim test, according to New York State Park documents.
Lester who believes that "as you age you should show less skin" prefers jammers; tight lycra shorts that end a couple of inches above the knee.
The bankruptcy attorney claims "Speedos are not appropriate for a 61-year-old" and refused to wear loose-fitting shorts because they would slow him down.
When the Jones Beach Lifeguard Coordinators refused to let Lester compete in his jammers, he saw it as the state "trying to get rid of the older lifeguards."
Deeming this a "blatant act of discrimination," he sued New York State Parks in May 2007.
The case was dismissed and, after appeal, it was dismissed again the following year in Nassau County Supreme Court.
The court found that since 80 of the 271 lifeguards hired in 2007 ranged from 40 to 80 years old -- six with the same age as Lester -- there was no probable cause of age-based discrimination, according to court documents.
However, the court reversed this decision last Tuesday on second appeal allowing the case to go to trial.
Lester said the rule applies only to Long Island -- a municipality he claims has "a unique disproportionate number of older lifeguards working there."
"It does not exist in any other municipality in the nation nor anywhere else in the world," he said.
New York State Parks refused to comment on the case because it is in litigation
"We do not discriminate based on age," is all spokesman Peter Brancato would say.
Both the attorney general for New York and the Jones Beach Lifeguard Coordinators office refused to comment.