Nassau to pay lifeguard in age-bias suit

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) (Credit: Newsday/Jessica Rotkiewicz)

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Nassau County will pay $65,000 to settle an age-discrimination suit with a lifeguard who was first suspended and then discharged in 2009 when he was 71 years old, a federal agency said Wednesday.

Jay Lieberfarb, now 74, of Valley Stream, had 50 years' experience as a lifeguard when he failed a county swimming test and was suspended, the U.S. Equal Employment Opportunity Commission said.

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.

Younger lifeguards who failed the same test were neither suspended nor discharged, but were permitted to continue working until they passed the test, the agency said.

The actions by the county violated the Age Discrimination in Employment Act, according to a news release from the agency. The suit was filed in September 2010 after the agency and the county could not reach a settlement.

Lieberfarb, working Wednesday as a lifeguard at Hofstra University, said his initial reaction was, "I'm happy."

He said the settlement restricted him from talking about the suit, but he praised his union, Nassau County CSEA Local 830, which represents most county employees, and the federal EEOC. "Without them, this wouldn't have happened," he said.

County attorney John Ciampoli said the county did not have to rehire Lieberfarb as a lifeguard.

"We reviewed the facts of the case and decided that the best course of action for the county was a cash settlement without giving him his job back," Ciampoli said.

In addition to $65,000 in back pay for Lieberfarb, the three-year consent decree in U.S. District Court in Brooklyn prohibits the county from age discrimination or retaliation for taking part in an EEOC investigation, and mandates monitoring and policy reviews.

"Employers must be mindful of age discrimination and take steps to prevent it," said Kevin Berry, EEOC New York district director. "Employers cannot treat their older workers less favorably than their younger employees -- they must be treated in the same manner as all others."

Konrad Batog, the agency attorney assigned to the case, said Lieberfarb "dedicated his life to the lifeguard profession and deserved the same treatment that younger lifeguards received."

With Robert Brodsky

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