EEOC lawsuit alleges age-discrimination vs. Nassau lifeguard

Jay Lieberfarb, 72, says he was fired after

Jay Lieberfarb, 72, says he was fired after failing a swimming test and through the federal Equal Employment Opportunity Commission, is suing Nassau County for age discrimination. (Sept. 30, 2010) Photo Credit: Newsday/Jessica Rotkiewicz

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A lifeguard with five decades' experience was fired by Nassau County for failing a swimming test while younger lifeguards who flunked the test kept their jobs, according to an age-discrimination lawsuit filed Thursday in federal court in Central Islip.

Jay Lieberfarb, 72, of Valley Stream, who had been a part-time, year-round lifeguard at the Nassau County Aquatic Center in Eisenhower Park, was fired July 2, 2009, after failing the test about a week earlier, according to the suit filed by the federal Equal Employment Opportunity Commission.

The suit seeks about $25,000 in back pay and reinstatement for Lieberfarb, who began working for the county in 2007 after 50 years as a state lifeguard at Jones Beach. The EEOC also wants the county to provide employees and managers with training about preventing age discrimination.

Lieberfarb failed two swimming tests - at distances of 50 meters and 200 meters - on June 23, 2009, but was given a second chance, the suit says. He passed the 50-meter test one week later, but injured himself before he could take the second swim test and was told to return with a doctor's note, the suit says.

Lieberfarb was fired before he could provide the note, the suit alleges.

Other lifeguards much younger than Lieberfarb also failed, but were allowed to continue working until they passed both tests, said Robert Rose, an EEOC attorney.

"He's the only one that we know of who was terminated based on these swim tests," Rose said Thursday.

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"No one else was treated the way he was regarding these tests."Reached at home, Lieberfarb declined to comment and referred questions to the EEOC.

In a statement, Nassau County Attorney John Ciampoli said he had not seen the lawsuit and could not comment on it. But he said the county would vigorously defend itself and said the county "reiterates its opposition to discrimination on any grounds."

Rose said the EEOC had no problems with the test itself and did not believe the county targeted Lieberfarb for termination. The EEOC sought to settle the complaint with the county before filing the lawsuit, but the county refused, Rose said.

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