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Showing posts with label Fair Housing Act. Show all posts
Showing posts with label Fair Housing Act. Show all posts

Wednesday, August 18, 2021

Housing Discrimination - Updated Protected Classes List - As Applicable to Downstate New York

We are always updating our CE courses at Lieb School because the law is constantly changing. 


While the law changes on every topic, there is no field that seems to be evolving today more than anti-discrimination law. So, we thought it important to share our updated definitive lists of protected classes within downstate New York for Fair Housing and Discrimination Law.


Note - While these lists are similar for employment discrimination law, there are minor differences in protections between the two fields and you should consult with an attorney should you have any questions.


Fair Housing Act:

  1. Race
  2. Color
  3. National origin
  4. Religion
  5. Sex
  6. Familial status
  7. Handicap

New York State Human Rights Law
  1. Race
  2. Creed
  3. Color
  4. National origin
  5. Sexual orientation
  6. Gender identity or expression (transgender)
  7. Military status
  8. Sex
  9. Age
  10. Disability
  11. Marital status
  12. Lawful source of income
  13. Familial status
  14. Arrest / sealed conviction record
  15. Domestic violence victim status (lease / occupancy only)

New York City Human Rights Law
  1. Race
  2. Creed 
  3. Color 
  4. National origin 
  5. Gender 
  6. Age 
  7. Disability 
  8. Sexual orientation 
  9. Uniformed service
  10. Marital status 
  11. Partnership status 
  12. Immigration or citizenship status
  13. Lawful source of income 
  14. Presence of children 
  15. Occupation
  16. Victim of domestic violence, stalking or sex offenses

Westchester Fair Housing Law:
  1. Race
  2. Color
  3. Religion
  4. Age
  5. National origin
  6. Alienage or citizenship status
  7. Ethnicity
  8. Familial status
  9. Creed
  10. Gender
  11. Sexual orientation
  12. Marital status 
  13. Disability 
  14. Source of income
  15. Status as victim of domestic violence, sexual abuse, or stalking

Nassau County Fair Housing (Open Housing)
  1. Race
  2. Creed
  3. Color
  4. Gender
  5. Disability
  6. Age 
  7. Religion
  8. Source of income
  9. Veteran status 
  10. Sexual orientation
  11. Familial status 
  12. Marital status
  13. Ethnicity  
  14. National origin
  15. First responder status
  16. Visible traits of an individual such as natural hair texture, protective hairstyles & donning of religious garments or items and shall include segregation

Suffolk County Human Rights Law:
  1. Race
  2. Color
  3. Creed
  4. Age
  5. National origin
  6. Alienage / citizenship
  7. Gender
  8. Sexual orientation 
  9. Disability
  10. Marital status 
  11. Sex
  12. Familial status
  13. Military status 
  14. Visible traits of an individual, such as natural hair texture, protective hairstyles & donning of religious garments or items
  15. Lawful source of income
  16. Veteran status
  17. Victim of domestic violence

To remind everyone, the federal law is the floor under which states and locales may not fall. Plus, there are often city / town / village anti-discrimination laws that are also relevant and must be respected in housing.

Discrimination is wrong and should be eliminated through trainings, policies, and lawsuits. As a society, we have to utilize all of the tools in our arsenal to make housing available to everyone irrespective of demographics.

Help us to get the word out on this one. It's important because unless everyone knows the protections, no one is really protected.





Tuesday, June 01, 2021

Increased Fair Housing Enforcement is Coming Per President

According to today's White House Press Release, "President Biden issued a memorandum directing the U.S. Department of Housing and Urban Development (HUD) to address discrimination in our housing market." 

In doing so, the President has charged the Secretary of HUD to lead an "interagency initiative to address inequity in home appraisals" while citing to a study that found "homes in majority-Black neighborhoods are often valued at tens of thousands of dollars less than comparable homes in similar—but majority-White—communities."

Next week, HUD is publishing a new disparate impact discrimination rule in the federal register to address neutral housing policies that have a discriminatory impact on marginalized groups. 

Are you part of the problem or part of the solution? 



Wednesday, January 27, 2021

NYS Senate Report on Fair Housing - Changes Coming to RE Brokerage - Get Ready NOW

A 97 page report was just issued by the NYS Senate on persistent racial and ethnicity-related housing discrimination and this report is going to change the real estate brokerage industry in NYS forever. 


Are you ready? 


According to the report, housing discrimination has changed over the last hundred years from being overt to subvert. However, housing discrimination clearly still exists and something has to be done about it now. 


Would it surprise you to learn that in 2019 there were 28,880 reported complaints of housing discrimination in the USA? Again, twenty-eight thousand complaints!!!


Did you know that the precursor to the National Association of Realtors (NAR) required its members to discriminate as follows:

A Realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality or individuals whose presence will clearly be detrimental to property values in that neighborhood. 

While this overt discrimination is less prevalent today, the report explains that: 

Today, bad actors often use subtler forms of discrimination; they direct homebuyers of different apparent backgrounds toward different communities, impose more stringent financial requirements on people of color, and provide unequal services to clients based upon their race or ethnicity.

[S]ome real estate agents utilize subtle ways to discriminate, like racially coded guidance and disparate treatment in services offered.


In acknowledging that real estate brokers and agents are the gatekeepers for neighborhoods, the report makes the following categories of recommendations:

  1. Develop a NYS Fair Housing Strategy
  2. More Proactive Enforcement of Fair Housing Laws (i.e., testing, more funding, & data collection)
  3. Licensing & Renewal Training Requirements (i.e., more training from better instructors for licensing & continuing education with a focus on implicit bias trainings)
  4. Increased Penalties & Broader Accountability (i.e., $2K fines increased from $1K & managers responsible like brokers with increased experience requirements to qualify)
  5. Standardized Broker Policies with Public (i.e., prospect identification, exclusive broker agreement requirements, & pre-approval for mortgages)
  6. Internal Brokerage Policies (i.e., brokerages need updated policy manuals with fair housing statements & explanations of the consequences for violations)
  7. State & Local Governments to Affirmatively Further Fair Housing (i.e., enforcement is everyone's responsibility) 
  8. Brokers Must Open Offices in Communities of Color (i.e., 12 firms control 50% of listings, but only about 20% to 33% of the listings in minority communities)
  9. More Diverse Brokerage Workforce (i.e., NAR's members are 80% white; need Diversity, Equity, & Inclusion initiatives to attract talent to the industry) 
The report also suggests, that brokers fund these recommendations by charging between $10 & $30 for license renewal to the 130,578 real estate brokerage licensees in NYS.

Are you ready yet? 

There are eleven new pieces of legislation supported in this report and because our state has a one-party controlled government, they are likely going to pass quickly.

Brokers, Salespersons, and other industry participants, like landlords, property managers, and attorneys need to get ahead of this now and make proactive changes to their practices today. The alternative is defending the next wave of enforcement initiatives. 

In reminding everyone of this salient fact, the report quoted Supreme Court Justice Thurgood Marshall in saying:

There is very little truth in the old refrain that one cannot legislate equality. Laws not only provide concrete benefits, they can even change the hearts of men some men, anyhow for good or evil.

It's time to change from being part of the problem to being part of the solution. Are you ready?





Tuesday, January 26, 2021

New Rules Coming on Housing Discrimination - Disparate Impact Discrimination is Changing Again

In housing discrimination, you can't treat people differently in the terms, conditions, privileges, and/or availability of housing. 


Yet, you aren't just responsible for your intended acts of discrimination, known as disparate treatment discrimination. Instead, you are also responsible for your unintended acts that impact groups of people as a secondary effect, which is known as disparate impact discrimination.


Think about it this way, if you don't rent to women, as a policy, that is clearly an act of disparate treatment sex discrimination. However, if you don't rent to long-haired people, aren't you still impacting women in sex discrimination under a different name? That is called disparate impact discrimination.


As to disparate impact discrimination, President Biden just ordered HUD to make sure that the regulations on disparate impact discrimination is preventing practices with an unjustified discriminatory effect. 


Do you think that there should be disparate impact discrimination laws? If so, what do you think they should be? 




Thursday, January 21, 2021

Fair Housing Act Prohibits Discrimination on the Basis of Gender Identity & Sexual Orientation per President Biden

On Day 1 of President Biden's Term, he expanded our understanding of the Fair Housing Act by making clear that it includes protections against discrimination on the basis of gender identity & sexual orientation. 


See his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation for your full understanding.


As explained by the President, the US Supreme Court ruled in 2020 that employment discrimination laws, which expressly prohibit sex discrimination, also prohibit discrimination on the basis of gender identity and sexual orientation; and that the same reasoning behind the Supreme Court's ruling will now be applied to the Fair Housing Act's prohibition of discrimination in the sale and rental of housing across our nation. 


In fact, the Executive Order put all perpetrators on notice by stating that the government will issue plans, within 100 days, to effectuate its policy of enforcing these prohibitions against discrimination on the basis of gender identity or sexual orientation.


While many states, such as NY, and other locales, already prohibit gender identity and sexual orientation discrimination in housing, the Federal Government stepping in to enforce violations can change the game.


How will you change your business because of this Order?  




Monday, November 02, 2020

New Discrimination Standard Under the Fair Housing Act is Effective

Effective October 26, 2020, HUD implemented a new disparate impact fair housing standard.

 

Disparate impact discrimination occurs when housing practices have an unjustified discriminatory effect even though they were not motivated by a discriminatory intent. 


The new standard exists at 24 CFR 100.500 and it makes a claim of disparate impact discrimination far harder to bring and even harder to prove as compared to the prior HUD standard.


Previously, the regulation did not contain an express pleading standard and instead, only required the plaintiff to prove "that a challenged practice caused or predictably will cause a discriminatory effect." 


Now a plaintiff must "sufficiently plead facts to support each of the following elements: (1) That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law; (2) That the challenged policy or practice has a disproportionately adverse effect on members of a protected class; (3) That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect; (4) That the alleged disparity caused by the policy or practice is significant; and (5) That there is a direct relation between the injury asserted and the injurious conduct alleged."


With respect to the 3rd element, that is a very heavy burden for a plaintiff to satisfy at the pleading stage of litigation because the requisite evidence is often unavailable until the parties have engaged in the discovery process. 


Moreover, while the prior regulation provided that a defendant would then have to rebut the claim by "proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests[,]" a defendant now can just rebut the first element "by producing evidence showing that the challenged policy or practice advances a valid interest (or interests) and is therefore not arbitrary, artificial, and unnecessary." Changing the term from a "substantial" interest to "a valid interest" results in the defendant's burden seemingly being far lower.

 

Moreover, under the new standard, once the defendant rebuts the first element, "the plaintiff must prove by the preponderance of the evidence either that the interest (or interests) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest (or interests) in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant." Previously, this was the defendant's burden. 


Regardless, there are now also 3 express defenses available, including that "(i) The policy or practice is intended to predict an occurrence of an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). This is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant. (ii) The plaintiff has failed to establish that a policy or practice has a discriminatory effect under paragraph (c) of this section. (iii) The defendant’s policy or practice is reasonably necessary to comply with a third party requirement, such as a: (A) Federal, state, or local law; (B) Binding or controlling court, arbitral, administrative order or opinion; or (C) Binding or controlling regulatory, administrative, or government guidance or requirement."


Housing participants should be particularly interested in the third available defense in the form of a controlling administrative opinion or binding regulatory guidance. It is strenuously suggested that every housing industry participant seeks such opinion or guidance as a necessary incident of any business plan covering a new product or service. To fail to do so is just reckless in a world where such a defense exists. 


That being said, it is noted that this regulation only pertains to a federal housing discrimination claim and states and locales may offer increased protections to their citizens. So, these other laws must also be analyzed for housing participants to the extent that they afford disparate impact claims (e.g., NYC Admin. Code). 







Wednesday, April 01, 2020

It's Fair Housing Month - Coronavirus Discrimination Must Stop

Equal rights to housing is particularly important during this quarantine. 

A quarantine can be a very different experience dependent on your housing situation. Some people are sharing a bathroom with ten others while others are navigating between their indoor pool and their gym. Some have country homes to escape the city while others must walk stairwells infested with COVID-19. This is our current reality as a society. 

Make no mistake, in our capitalist society these differences should not only be accepted, but celebrated. Yet, these differences can only be caused by economic differences, not based upon the way we stigmatize people as a result of their demographic characteristics. 

Unfortunately, not everyone is observing the law today. According to the CDC, "fear and anxiety about a disease can lead to social stigma toward people, places, or things." In fact, the CDC has identified individuals of "Asian descent" as the current victims of stigma during the coronavirus pandemic. Let's change that starting today. 

Today is the start of Fair Housing Month. According to HUD, Fair Housing Month is a time to come together "as a community and a nation to celebrate the anniversary of the passing of the Fair Housing Act and recommit to that goal which inspired us in the aftermath of Rev. Dr. Martin Luther King Jr’s assassination in 1968: to eliminate housing discrimination and create equal opportunity in every community.”

We should do it. We can do it. We must do it.


Friday, January 17, 2020

Enhanced Fair Housing Regulations Published in State Register - Make Your Comments IMMEDIATELY

On January 15, 2020, Enhanced Fair Housing Provisions (page 12) were officially announced for New York State in the State Register.

Public Comment period goes to March 15, 2020 - make your comments by email:
david.mossberg@dos.ny.gov - or forever hold your peace. 

The proposal includes additions to 19 NYCRR 175.28, 175.29 and 177.9.


Section 175.28. Notification of Fair Housing Laws requires real estate brokers to advise parties how to sue them for discrimination - BE WARNED - it states:

a) A real estate broker shall be responsible to ensure that each individual licensed pursuant to Article 12-A of the New York Real Property Law and associated with such broker provides to a prospective purchaser, tenant, seller, or landlord upon first substantive contact a disclosure notice furnished by the Department, containing substantive provisions of the New York State Human Rights Law. The disclosure notice shall set forth how Human Rights Law complaints may be filed, and such other information as the Department deems pertinent.

b) The disclosure notice required pursuant to paragraph (a) of this section, may be provided to a prospective purchaser, tenant, seller, or landlord by any of the following means: email, text, electronic messaging system, facsimile, or hardcopy. An electronic communication containing a link to the disclosure notice required pursuant to paragraph (a) of this section shall be permissible, provided the communication also contains text to inform the prospective purchaser, tenant, seller, or landlord that the link contains information regarding the New York State Human Rights Law. Oral disclosure does not satisfy the requirements imposed by this section.

c) The disclosure notice required by paragraph (a) of this section shall apply to all real property whether or not it is used or occupied, or intended to be used or occupied, wholly or partly, as a home or residence of one or more persons regardless of the number of units, and shall include: condominiums; cooperative apartments; vacant lands, including unimproved real property upon which such dwellings are to be constructed; or commercial properties.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by hardcopy, shall obtain a signed acknowledgment from the prospective buyer, tenant, seller, or landlord. Such signed disclosure notice shall be retained for not less than three years. A real estate broker, licensed real estate salesperson, or licensed associate broker that provides the disclosure notice required pursuant to this section by email, text, electronic messaging system, or facsimile, shall maintain a duplicate copy of such disclosure and shall retain the same for not less than three years. If the prospective buyer, tenant, seller, or landlord declines to sign the disclosure notice, the real estate broker, licensed real estate salesperson or licensed associate broker shall set forth under oath or affirmation a written declaration of the facts regarding when such notice was provided and shall maintain a copy of the declaration for not less than three years.

e) A real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker.

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Section 175.29. Posting of Fair Housing Laws requires new fair housing signs at offices, websites, & all open houses to advise parties how to sue them for discrimination - BE WARNED - it states:

a) A real estate broker shall display and maintain at every office and branch office operated by such broker a notice, furnished by the Department, indicating the substantive provisions of the New York State Human Rights Law relative to housing accommodations. The notice shall set forth
how Human Rights Law complaints may be filed and such other information as the Department deems pertinent.

b) The notice required by paragraph (a) of this section shall be prominently displayed in the window of such office and any branch office maintained by such broker if such broker also provides listings or other postings in the window of such location and must be visible to persons on that portion of the sidewalk adjacent to such office or branch office. If any office or branch office is not accessible from the sidewalk or if postings are otherwise prohibited by any other applicable law, then the notice
required pursuant to paragraph (a) of this section shall be prominently posted in the same location the business license is posted pursuant to subdivision 3 of section 441-a of article 12 of the Real Property Law.

c) All websites created and maintained by real estate brokers, associate real estate brokers, real estate salespersons and any real estate team, as such term is defined by section 175.25 of this title, shall prominently and conspicuously display on the homepage of such website a link to the Department’s notice as required by paragraph (a) of this section, which shall be made available by the Department.

d) A real estate broker, licensed real estate salesperson, or licensed associate broker shall have displayed at all open houses of all real property the notice required by paragraph (a) of this section. In addition, a real estate broker, licensed real estate agent, or licensed associate broker shall
have available at all open houses and showings of all real property the notice required by paragraph (a) of section 175.28 of this part.

e) A real estate broker shall be jointly liable for any violation of this section committed by any licensed individual associated with such broker.

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Section 177.9. Video Recording and Record Preservation requires schools to record their discrimination trainings - it states:

(a) Every entity approved to provide instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property shall cause a recording to be created of each course in its entirety. Such recording shall contain both video and audio of the instruction.

(b) The recording required by paragraph (a) of this section shall be maintained by the approved entity for at least one year following the date such course was provided to an enrolled student. If the entity knows or suspects that the recording is or will be the subject of litigation, then the approved entity shall maintain such recording as required by law.

(c) The recording required by paragraph (a) of this section may be subject to audit by the Department pursuant to section 177.11 of this part.


Wednesday, December 18, 2019

We Now Offer Real Estate Brokerage Video Compliance Trainings & Certifications

Lieb Compliance is now offering real estate brokerage companies a private online portal with customized video compliance classes and certifications for their agents. Certifications include Fair Housing & Discrimination, Rentals (Tenant Protection Act of 2019), Agency Disclosure, Sexual Harassment Prevention and more.

To learn more visit www.realestatecompliancetraining.com 


Monday, December 16, 2019

New Regulations To Combat Housing Discrimination

On December 16, 2019, Governor Cuomo announced new regulations to help fight housing discrimination. Pursuant to Gov. Cuomo’s announcement and the DOS Board of Real Estate meeting (from 35:15 to 1:10:40) from the same day, the regulations require the following:
  • Notification of Fair Housing laws: All prospective buyers, renters, sellers, and landlords receive the disclosure on fair housing and New York State Human Rights Law as furnished by the Department of State (similar to agency disclosure form, but with broader application). It must also be available at every open house or real estate showing conducted by a real estate professional. This will be known as 19 NYCRR 175.28.
  •  Posting of Fair Housing laws: Real estate brokers must also display and maintain at every office a notice highlighting the Human Rights Law’s protections and how complaints may be filed. It must be visible from the sidewalk or another conspicuous place and must also be displayed on all websites created and maintained by real estate brokers, salespersons and teams. The notice must also be posted at every open house conducted by a real estate professional. This will be known as 19 NYCRR 175.29. 
  • Video recording and record preservation: All entities approved to provide fair housing and/or discrimination training must record video and audio of every course in its entirety and must keep the recording for 1 year following the date the course was provided. This will be known as 19 NYCRR 177.9.
The proposed regulations will be published on the New York State Register and will be available for a public comment period of 60 days. Lieb Blog will post the proposed regulations once they are available. Stay tuned.



Friday, November 22, 2019

Attorney Andrew Lieb's Fair Housing CE SALE | Online Video Real Estate Continuing Education

Elected officials have assured the public that they will be enforcing discrimination laws.

Beyond governmental enforcement, private discrimination lawsuits are about to flood the courts.

Did you know that the statute, Real Property Law §441(3)(c), requires that fair housing courses be taught by attorneys only? The statute states: It shall be taught by a qualified faculty with attorneys presenting legal subjects.

It's time to learn with Lieb. ALL of Lieb School's continuing education courses are in full compliance with applicable laws. Lieb School courses are developed and instructed by Attorney Andrew Lieb. Mr. Lieb has dedicated his legal practice to helping the real estate brokerage community comply with license law and prevent discrimination.

Your real estate license is your livelihood. Make sure you know how to do your job without discrimination. Lieb School is  your source to avoid being named in the next Newsday article .

Lieb School is now offering 20% off Online Video Courses. Use coupon code "LIEBFH19" at checkout. All packages include Fair Housing.

Register for Fair Housing Act to purchase the class without a package


Thursday, November 21, 2019

Dear LIBOR - Lieb School has a question about your Fair Housing Courses

Did you know that the statute, Real Property Law §441(3)(c), requires that fair housing courses be taught by attorneys only?

The statute states: It shall be taught by a qualified faculty with attorneys presenting legal subjects.

We are just wondering how Newsday's Long Island Divided reported on real estate licensees deficiencies in teaching fair housing when they aren't legally allowed to teach these courses in the first place.

Please let us know.

Liebschool.com - where the law is followed



Monday, February 26, 2018

DOJ Launches Sexual Harassment in Housing Initiative


The Civil Rights Division of the Department of Justice announced a new initiative that brings local law enforcement, legal service providers, and DOJ officials together in order to encourage victims to report instances of sexual harassment, increase awareness, assist in obtaining necessary resources for relief, and ultimately, continue the vigorous enforcement of the Fair Housing Act’s ban on sexual harassment.

This initiative stemmed from four cases in 2017, wherein DOJ recovered over $1 million in damages for claims of sexual harassment and violations of the Fair Housing Act. Two of those cases are U.S. v. Kansas City, Kansas Housing Authority and U.S. v. Tjoelker.

On September 29, 2017, DOJ executed a settlement agreement resolving a case against Kansas City Kansas Housing Authority (KCKHA). The Complaint alleged KCKHA employees engaged in a pattern or practice of sexually harassing female housing applicants and residents. One defendant even admitted in sworn deposition testimony that he exposed himself to multiple females. In the agreement, the fourteen aggrieved females were awarded $360,000 in monetary damages. In addition, KCKHA was ordered to implement a written policy against sexual harassment, including a formal complaint procedure to be approved by DOJ and to pay a $5,000 civil penalty to the United States.

On October 3, 2017, DOJ also executed a settlement agreement against Frank Tjoelker, owner and/or manager of rental dwellings in Grand Rapids, Michigan. The Complaint also alleged that he engaged in a pattern or practice of sexually harassing actual and prospective female tenants. Allegations include unwelcome sexual comments and advances, unwanted groping or touching, offers for housing benefits in exchange for sexual favors, and taking or threats of taking adverse housing actions for those who object to such harassment or refuse to grant sexual favors. Under the settlement agreement, Tjoelker was ordered to pay $140,000 to compensate the ten victims and a $10,000 civil penalty to the United States.

Although DOJ only executed settlement agreements to obtain resolutions on the above-mentioned cases and such agreements are binding only among the parties involved, it is likely that DOJ will apply similar penalties in future settlement agreements or decisions on violations of the Fair Housing Act’s sexual harassment ban. See U.S. v. Bailey, U.S. v. Barnason, and U.S. v. Bathrick.

In this regard, as evidence of good faith compliance with the Fair Housing Act, real estate professionals are encouraged to establish written policies against sexual harassment, to train their employees and agents to identify and refrain from engaging in acts of sexual harassment, and to establish procedures for handling complaints.