LIEB BLOG

How current events impact business & real estate

Showing posts with label housing discrimination. Show all posts
Showing posts with label housing discrimination. Show all posts

Thursday, September 16, 2021

Are Minimum Income-to-Rent Policies Discriminatory?

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York


This case addressed whether minimum income requirements for rentals are discriminatory. 


What do you think?


Should a landlord be able to screen tenants based on their income?


The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 


To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 


Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 


So, keep a close eye on this one. 




Monday, August 02, 2021

Lieb Quoted in Newsday Article on Section 8 Vouchers & Discrimination

Check out Maura McDermott's Newsday article, Ruling: Suffolk complex broke law spurning Section 8 housing vouchers.

In the article, I'm quoted as saying that "Starting in September, a new state law requires state agencies and nonprofits that administer housing subsidies to give recipients written notice about their fair-housing rights" and that "fair-housing enforcement has become a higher priority at the local, state and federal level, which he said was prompted by Newsday’s 2019 Long Island Divided project, a three-year investigation into housing bias."

The article is about how Long Island Housing Services filed suit after "its testers were told the complex did not accept federal housing-choice subsidies, also known as Section 8 vouchers."

Do you think we should have more testers in society to route out housing discrimination?

Who should pay for these testers?

In the article, it said that Long Island Housing Services paid $23,855 for the testors - that's a lot of $$$




Wednesday, July 28, 2021

John Oliver Tackles Fair Housing - Newsday's Long Island Divided is on HBO

If you still don't understand that housing discrimination happens or if you are confused about the long term impacts of discrimination, you need to watch this great explanation of housing discrimination on HBO by John Oliver - it's a must watch for anyone who doesn't understand that housing discrimination from yesterday impacts lives today. 


Alternatively, here is The Lieb Cast tackling the same issue on our podcast back on January 31, 2021. 


Who does the topic better; Lieb or Oliver?


Shouldn't John have Lieb on his show?


What do you think?




Wednesday, July 21, 2021

Filing a Discrimination Complaint with the NYS Division of Human Rights Just Got Easier

As of July 16, 2021, discrimination victims need not have their discrimination complaints notarized before filing them with the NYS Division of Human Rights, per a change to Executive Law 297(1)


This applies to both victims of employment discrimination and housing discrimination.


According to the laws justification, the notarization requirement "discourage[d] people from filing complaints" and the Division nonetheless received over 6,000 complaints annually. 


How many complaints will the Division receive now? 


Do you think that this new law makes sense? 


Does it matter if a document is notarized? 


Shouldn't preventing discrimination be as easy as pie? 





Tuesday, July 20, 2021

Attention Landlords - Source of Income Discrimination Lawsuits are Coming as of 9/14/2021

On July 16, 2021, new Executive Law 170-e was signed into law and requires that all administrators of housing assistance (governmental / nonprofits) ensure that "individuals who have applied for and are eligible to receive such assistance, payment, subsidy or credit are informed, in writing, of their rights and remedies available under law, with regard to lawful source of income discrimination.”


The law is effective as of September 14, 2021 and that is an important deadline for landlords, brokers, and property managers to get up to speed on the rules to avoid source of income discrimination in their ranks.


To illustrate, a housing provider who requests a credit score from a voucher recipient could be discrimination, a housing provider who demands a minimum income from a voucher recipient could be discrimination, and a housing provider who makes receipt of a voucher a precondition to seeing units could be discriminating.


Do you have policies in place to avoid your team discriminating and subjecting you to a major lawsuit??


More so, those policies better include the forthcoming regulations that the State Division of Human Rights is going to promulgate to particularize this new law.


Are you ready? 






Tuesday, December 08, 2020

Housing Discrimination Plaintiffs Now Have Two Bites at the Apple

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). 







Thursday, July 02, 2020

5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate

A recent New York State, Appellate Division case (Hosking v. Memorial Sloan-Kettering Cancer Center) serves as a reminder to employers and landlords that they may be exposed to disability discrimination lawsuits if they do not engage in an "interactive process" prior to denying a reasonable accommodation request, even if the ultimate decision denying the accommodation is legal. As detailed in the above referenced case, a court will not even reach the step of determining whether the denial of the accommodation is legal if the employer/landlord fails to follow the proper process in evaluating the request.

To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:

1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.

2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:
  • General information of employee/tenant (i.e. name, contact information)
  • Nature of the disability
  • Requested/suggested accommodation(s) 
3) Review and Discuss with Employee/Tenant:
  • Review accommodation request
  • Request supporting medical documentation if necessary from employee/tenant to properly evaluate request 
  • Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant  
4) Analyze Whether an Undue Hardship Exists: Employers/landlords are not required to provide an accommodation if providing such accommodation would present an undue hardship. Elements an employer/landlord should analyze include:
  • Cost of the accommodation
  • Resources of the employer/landlord
  • Impact on operation of workplace/facility
5) Draft Determination Letter and Submit to Employee/Tenant: The letter should include:
  • A summary of the interactive process
  • The accommodation provided
  • If an accommodation is denied, provide a detailed explanation (e.g. absence of an accommodation that would permit employee to perform essential functions of position, undue hardship)
  • If accommodation request is granted, a date to follow up on effectiveness of accommodation



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

What Landlords & Brokers Can Discuss When Dealing With Tenants To Avoid Discrimination in Housing

Housing discrimination is very serious and exposes Landlords and Real Estate Brokers to major lawsuits for big money damages. Attorney Andrew Lieb, Esq. explains to real estate investors and brokers how to minimize exposure and not discriminate to potential tenants. Learn what to say and what not to say when dealing with prospective tenants to avoid getting sued.



Monday, December 30, 2019

Housing Discrimination Lawsuits and Damages

On 11/17/19 Newsday published "Long Island Divided" a report of the state of housing discrimination on Long Island.

Private discrimination lawsuits are about to flood the courts and suits can result in 6 to 7 figure awards. A discrimination plaintiff bringing a court proceeding will seek actual damages (direct for loss of housing and consequential of emotional distress for loss of dignity), punitive damages, statutory penalties, attorneys' fees and costs.

Read the full article by Andrew Lieb, Esq. published in The Suffolk Lawyer here. 


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.