LIEB BLOG

Legal Analysts

Wednesday, June 18, 2025

New Discrimination Complaint Filing and Investigation Procedure in NYS Proposed by Division of Human Rights

The New York State Division of Human Rights, which oversees the administrative adjudication of discrimination claims throughout the State, has proposed new rules for Complaints and Investigations in the New York State Register on June 18, 2025. 


Under this Proposed Rule Making, the following changes are submitted for comment on or before August 17, 2025 to Erin Sobkowski, Division of Human Rights, 350 Main St., 10th Fl., Suite 1000B, Buffalo, New York 14202, (716) 847-7679, email: Erin.Sobkowski@dhr.ny.gov:

  • Section 465.1, Definitions, has been amended to reflect the change in title to the Deputy Commissioner of Investigations.
  • Section 465.2, Service of Papers, has been amended to provide for electronic service of papers. In addition, the provision regarding service on nonresident persons and foreign corporations has been removed because such service is now dictated by the Civil Practice Law and Rules. 
  • Subdivision 465.3(a) is amended to clearly state that any person within the meaning of Executive Law Section 292(1) may file a complaint, or, on behalf of such person, an attorney, legal representative appointed by a court, or a custodial parent or legal guardian of a person under the age of 18. In addition, language has been added to clarify what type of organization may file a complaint, consistent with caselaw. The language has been updated to reflect the current title of the Executive Director of the Justice Center for the Protection of People with Special Needs. The provision permitting class actions has been deleted pursuant to a court decision disallowing the division from awarding relief to persons who did not file a complaint. 
  • Subdivision 465.3(b), Form, is updated to reflect a statutory amendment made to the Human Rights Law pursuant to Chapter 304 of the Laws of 2021, permitting a complaint to be verified by declaration. In addition, this section requires complaints to be in a form promulgated by the Division. Such amendment is necessary to better ensure complaints filed with the Division meet sufficient standards to allow for effective investigation and adjudication and redirect Division time and resources from attempting to correct complaints that do not meet such standards. 
  • Subdivision 465.3(c), Contents, is amended to clarify that complaints must include: a concise statement of the alleged discriminatory acts, sufficient to enable the division to investigate the claims; sufficient identification of the complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts; factual allegations sufficient to support the claim. These changes are required to better ensure that complaints received by the Division contain sufficient information to allow for timely and effective investigation and to prevent unnecessary resources from being spent correcting complaints that do not meet legal standards for filing. 
  • Former subdivision 465.3(d), Place of Filing, has been removed to conform with the modern technological reality that complaints may be filed virtually. 
  • Former Subdivision 465.3(e), Time of Filing, is now Subdivision 465.3(d), and has been amended to reflect a statutory amendment, pursuant to Chapter 656 of the Laws of 2023, requiring a complaint be filed within three years of the alleged discriminatory conduct. 
  • Former Subdivision 465.3(f), Manner of filing, is now Subdivision 465.3(e), has been amended to reflect current use of technology, including the use of an online portal for filing and the creation of a telephonic option for filing complaints with the assistance of the Division’s call center. 
  • Section 465.5, Withdrawals, discontinuances and dismissals before a hearing, subdivisions 465.5(a) and (c) have been amended to clarify that a complainant may withdraw their complaint before a determination of probable cause has been issued and may discontinue their complaint with the consent of the commissioner after such a determination is made. A new sentence has been added to subdivision 465.5(c) to reflect the Division’s practice, in effect since October 12, 2021, that the commissioner will not consent to discontinue a complaint that has been settled privately without the Division. 
  • Subdivision 465.5(d) has been amended to clarify that the commissioner may duly appoint any Division employee to act on behalf of a regional director or the director of housing investigations. 
  • Subdivisions 465.5(f) and (g) are added to include other types of dismissals issued by the Division. 
  • Section 465.6, Investigations, has been amended to clarify that the commissioner may duly appoint any Division employee to act on behalf of a regional director or the director of housing investigations. 
  • Section 465.8, Probable cause review, has been deleted because it is obsolete due to electronic records storage and is otherwise unnecessary because it requires duplicative review of probable cause determinations.
However, the actual text of the proposed changes is not provided and must be requested from Edith Allen, Division of Human Rights, One Fordham Plaza, 4th Floor, Bronx, New York 10458, (718) 741-8398, email: Edith.Allen@dhr.ny.gov. We've made that request, so stay tuned.





Thursday, June 12, 2025

FARE Act - Landlord's Brokerage Commission from the Landlord only, NOT the Tenant

NYC rentals changed on June 11, 2025 forever. 


Historically, landlords hired brokers to list their rentals with the plan to make the tenant pay the landlord's broker (a/k/a, listing agent), as an additional fee set forth in the lease. This created a problem where tenants then had to do math and add that cost to the cost of their rental to know how expensive leasing the property was going to be. Now, NYC has determined that math is not for tenants, but only for landlords moving forward. As such, landlords now need to build that cost into their lease charges (i.e., gross up) and pay their broker's commission directly without tenant involvement. 


That's all fine and good; albeit slightly pointless, but the rub is in the statutory language, which is going to result in lawsuits. 


Specifically, the FARE Act doesn't just prevent this practice in the future, but it prohibits a broker from collecting a fee that was previously earned and legally, vested, in the broker, but not yet paid. This means that a broker, who did the work, now can't be paid by a facial reading of the statute. Good thing that the Contracts Clause of the US Constitution renders this provision unenforceable because otherwise the government will have brokers be forced to have worked for free without landlords and tenants ever having to pay for those services.


Here's another rub in the statute; A landlord who has a listing agreement with a broker that says that the tenant pays because, now, the tenant legally can't pay. So, will that landlord let the broker out of the contract or will that landlord insist that the broker needs to work for free because the contract signed with the broker says the broker will work for free for the landlord. This seems like it is going to result in a lot of litigation to rescind these listing agreements under the Frustration of Purpose Doctrine. 


The final issue is the requirement that the landlord or their agent must now provide an itemized written disclosure of any fees that the tenant must pay to the landlord, or to any other person at the direction of the landlord, in connection with such rental. However, what about when the fees are at the direction of the co-op or condo, but such direction is set forth in the House Rules / Bylaws that are incorporated into the landlord's lease? Whose direction is that at?  


If you are a residential landlord or broker, you must be sure to read the FARE Act, at section 20-699 of the NYC Admin. Code or subchapter 15 of Section 1 of Chapter 4 of title 20, and what NYC is putting out there about the law so that you can know what you have to do before you face a private lawsuit, fines, and/or restitution of any fees previously collected.




Thursday, June 05, 2025

Hey White Boy, SCOTUS Protects You - Reverse Discrimination Claims Simplified

There are no distinctions between bringing a reverse discrimination claim and a discrimination claim under the law anymore according to a unanimous SCOTUS Decision in Ames v. Ohio in an opinion by Justice Jackson. 

Previously, many courts required members of a majority group (white men) to satisfy a heightened evidentiary standard when suing for employment discrimination under Title VII, called background circumstances. 

No more and anyone thinking that they didn't have a case because they were in the majority, should reconsider. Remember, you have 300 days to file a charge with EEOC from the discriminatory event if you are in a state like NY (other states are sometimes 180 days) + state law discrimination claims in NY can be made for 3 years regardless of EEOC filing. 

As Justice Jackson wrote, "[t]he question in this case is whether, to satisfy that prima facie burden, a plaintiff who is a member of a majority group must also show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.'... We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs."

Therefore, we are again reminded, as Justice Thomas wrote in his concurrence, that "Title VII bars employment discrimination against 'any individual' “because of such individual’s race, color, religion, sex, or national origin.”

Interestly, Justice Thomas also reminds us that White Boys aren't the majority by stating that "[w]omen, for example, make up the majority in the United States as a whole." 

Anyway, there is now a clear path for reverse discrimination cases in the USA. Plus, we predicted this when teaching the CLE for Lawline, Reverse Discrimination: McDonnell Douglas in Trump's America.

Oh, and Justice Thomas predicts and argues why McDonnell Douglas is flawed beyond repair to prove disparate treatment discrimination through circumstantial evidence. 

This opinion is a must read for anyone that works in HR in Corporate America as well as all small business owners and managers. 



Tuesday, June 03, 2025

HUD Rescinded Fair Housing Regs, BUT There is a Lot More There Than it Seems

Often state / city government, like the Division of Human Rights or the Commission on Human Rights, will require a discrimination settlement to include affirmative actions to attract the victim's protected group into the perpetrator's business or housing or school. Seems discriminatory, no?

Well, HUD seems to think so too.

On June 3, 2025, HUD issued a proposed rule with a comment period until July 3, 2025, which is titled Rescission of Affirmative Fair Housing Marketing Regulations.

The substance of this proposed rule is less interesting than it's stated justification. Specifically, the justification states:

The Affirmative Fair Housing Marketing regulations are not about preventing discrimination; rather, they require applicants to affirmatively attract minority persons and to do so through “minority publications or other minority outlets.” 24 CFR 200.620. Far from supporting the race-neutral and purely prohibitory requirements of the Act, the AFHM regulations require private parties to sort individuals by race and engage in outreach based on race. 
 
In fact, the proposed rule clearly takes issue with this approach in reminding the public that the Fair Housing Act is "aimed at discrimination against persons because of race, not informational disparities." 

Then, it goes further in citing SCOTUS' anti-affirmative action case, Students for Fair Admissions v. Harvard, for the proposition that "[r]equiring applicants to reach out to different racial groups, in different mediums, perpetuates the “impermissible racial stereotype” that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike.”

In the end, this sentence says it all, "HUD should encourage applicants to be color-blind, as it is always immoral to treat some racial groups differently than others."

We wonder if state / city government will take notice and change their discriminatory requirements.





Tuesday, May 13, 2025

Employee or Independent Contractor? The DOL Just Changed the Rules... Again

Are you running a business, hiring freelancers, or working as one yourself? You may want to pay attention because on May 1st, the Department of Labor (“DOL”) changed the rule, again, for who counts as an “independent contractor.” 


In a May 1st memo, the DOL stated it is no longer following its own 2024 rulebook when deciding how one is classified as an independent contractor versus an employee. The 2024 test required courts to look at two factors: 

    1. How the business controls the employee’s work (how much the business directs the worker); and 
    2. If the worker can make (or lose) money based on their own decisions (or, to put it another way: does the worker have opportunity for profit or loss?) 


Instead of following the 2024 rules, DOL investigators will revert to using the 2008 “economic reality” test. Instead of two, this test has seven factors, which include but are not limited to questions like: 

  • Is the worker’s role central to the business? 
  • Do they work there long-term? 
  • Who controls how the work gets done? 
  • Did the worker invest in their own tools or equipment? 
  • Can they make a profit, or suffer a loss, based on how they work?
  • Does the worker need entrepreneurial skill to succeed at the job?
  • Is the worker's business their own, or an extension of their employer's?


So, what does this mean for you? 


It means no one factor decides the issue; just calling someone a “contractor” in a written agreement doesn’t and never cut it. But here’s the twist: the 2024 rule is still in effect for private litigation. So, if an employee sues a business, courts might still apply the newer framework. On the other hand, if the DOL comes calling instead of a private employee, courts will use the 2008 test.  


For now, businesses should tread carefully. Abiding by two separate standards can be difficult; one can imagine, for example, that one court could decide that a worker is an employee under the 2008 test, but another court determines the same worker is an independent contractor under the 2024 rule. The rules got fuzzier, and the risks grew larger. Misclassifying employees and contractors can have major consequences: unpaid wages, liquidated damages, lawsuits, and more.


So, what’s your take? Should “employee versus independent contractor” classification hinge on a set checklist? Or is a flexible, case-by-case approach the better path? 





Thursday, May 01, 2025

NYS - Appraisals Can't be Based on Immigrant Status of those in Vicinity of Property

Having passed the Assembly and Senate, A6869 will likely be enacted and strengthen antidiscrimination laws as to real estate appraisers. 

The new law includes an expansion of the New York State Human Rights Law, at Executive Law 296(5)(h), which will read:

It shall be an unlawful discriminatory practice for any person to discriminate against any individual in making real estate appraisal services available or to base a real estate appraisal, estimate, or opinion of value on the race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, status as a victim of domestic violence, lawful source of income, or familial status of either the prospective owners or occupants of the real property, the present owners or occupants of the real property, or the present owners or occupants of the real properties in the vicinity of the property. Nothing in this section shall prohibit a real estate appraiser from taking into consideration factors other than race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, status as a victim of domestic violence, lawful source of income, or familial status.
Note that an appraisal can't be impacted by "citizenship or immigration status" of those in the vicinity of the property.

Wondering what Trump thinks about that.




Monday, April 28, 2025

Trump Attempts to Eliminate Disparate Impact Discrimination, BUT Does he Have that Power?

President Trump issued Executive Order 14281, which purports to eliminate disparate impact discrimination, but can a President do that?


Disparate impact discrimination refers to discrimination that is proven by the existence of a discriminatory outcome, but instead of being based on a discriminatory act undertaken with discriminatory intent, it is based on a neutral policy that is not required to be proven to be based on discriminatory intent.



3 Takeaways from the EO:

  1. Elimination of Disparate Impact: The order's primary goal is to eliminate the use of "disparate-impact liability" in federal contexts. 
  2. Revocation of Regulatory Approvals: The order revokes specific presidential approvals of Department of Justice Title VI (i.e., funding recipients prohibition on discrimination based on race, color, and national origin) regulations related to disparate impact.
  3. Review and Revision of Existing Regulations and Cases: Federal agencies, including the EEOC and DOJ, are tasked with reviewing and revising existing regulations, pending investigations, and consent judgments that rely on disparate-impact theory.   


However, eliminating disparate impact is a topic for Congress, not the President. 


In fact, this EO is inconsistent with Statutory/Case Law and rises the potential for lawsuits. To be clear, Title VI, which is the main thrust of this EO, can be established by disparate impact analysis based on Supreme Court precedent from Lau v. Nichols. As to Employment Discrimination (i.e., Title VII of the Civil Rights Act of 1964), disparate impact is also a valid legal theory for proving employment discrimination based on the Supreme Court in cases like Griggs v. Duke Power Co. Similarly, the Fair Housing Act and the Equal Credit Opportunity Act also recognize disparate impact. This order attempts to undermine these protections, potentially leading to increased employment, education, housing, and credit discrimination. Moreover, the Executive Order's argument that disparate-impact liability violates equal protection is flawed. Equal protection aims to prevent discriminatory outcomes, not give paths to discriminate. 


That is all not to say whether the Trump Administration is right or wrong on their policy initiative to revoke disparate impact analysis while focusing on a meritocracy. Instead, this is to say that this should not be undertaken by an ineffective Executive Order, but instead it needs to happen legislatively through Congress. By doing it this way, the Trump Administration is going to create confusion for business that results in more discriminatory lawsuits because decision-makers will trust the EO to do what it purports to do while it likely does not much of anything at all. 




Monday, April 14, 2025

Trump Clarification on Gender Dysphoria (Gender Identity) Creates Confusion

Last week, HHS issued a "clarification" to their final rule "Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance," which creates more confusion than it solves and is expected to lead to litigation. 


The clarification is that the actual regulatory text of the final rule does not include gender dysphoria as a disability. Instead, it aligns with existing exclusions in federal law (29 U.S.C. 705(20)(F)), which exclude "gender identity disorders not resulting from physical impairments" from the definition of disability.


However, this can clarification can lead to litigation because it creates confusion with the New York State Human Rights Law (NYSHRL) by not explaining that states and locales can have more protections. In fact, the NYSHRL has broader protections in that it explicitly prohibits discrimination based on gender identity. This protection is significantly broader than the federal stance clarified by HHS, which, based on the Rehabilitation Act and ADA exclusions, does not recognize gender dysphoria as a disability in its regulatory text (unless it results from physical impairments). This creates a direct conflict:

  • Federal Level: Under federal regulations, as clarified, individuals experiencing gender dysphoria (not resulting from physical impairments) may not be considered disabled and thus may not be protected under federal disability non-discrimination laws in programs receiving federal funding.
  • New York State Level: Under the NYSHRL, discrimination based on gender identity is explicitly prohibited, regardless of whether it's classified as a disability under federal law. This means individuals in New York experiencing discrimination related to their gender dysphoria could have legal recourse under state law, even if they don't under the clarified federal interpretation.


Confusion for Individuals and Entities:
The discrepancy between federal and state law can lead to significant confusion for:

  • Individuals: People with gender dysphoria in New York might be unsure of their rights and protections. They might incorrectly believe that the federal clarification limits their rights under state law.
  • Entities Receiving Federal Funding in New York: Organizations and programs receiving federal funding in New York are obligated to comply with both federal and state anti-discrimination laws. The federal clarification might lead some to mistakenly believe they don't need to accommodate individuals with gender dysphoria under disability non-discrimination principles, even though the NYSHRL's broader definition of discrimination based on gender identity would still apply. This could lead to discriminatory practices and subsequent litigation under state law.
  • Potential for Legal Challenges: The federal clarification could be used by defendants in New York state law discrimination cases to argue that gender dysphoria is not a disability and therefore not protected under disability-related provisions, even though the NYSHRL's protection is based on gender identity, not solely disability status. This could lead to legal challenges where courts in New York will need to clearly delineate the scope and applicability of the NYSHRL's protections for gender identity in light of the federal clarification.
  • Enforcement Discrepancies: State agencies in New York responsible for enforcing the NYSHRL may continue to investigate and prosecute discrimination claims based on gender identity, even if the federal government takes a different approach based on its disability regulations. This difference in enforcement could lead to further confusion and potential legal clashes.

While the HHS clarification aims to resolve ambiguity at the federal level regarding the enforceability of preamble language, it simultaneously creates a potential conflict and source of confusion with the broader protections offered by the New York State Human Rights Law concerning gender identity. This divergence in legal interpretation and scope is likely to lead to litigation in New York as individuals and the state seek to uphold the protections afforded under state law.




Wednesday, April 02, 2025

Andrew Lieb offers CLE: Risk-Informed DEI: Balancing Legal Exposure and Organizational Culture

Attorney Andrew Lieb is teaching a CLE for the New York State Bar Association: Risk-Informed DEI: Balancing Legal Exposure and Organizational Culture


📅 Wednesday, April 16, 2025

🕧 12:30 p.m. – 1:45 p.m. ET

📍 Webinar

📚 1.5 MCLE Credits


This program covers how to navigate the intersection of Diversity, Equity, and Inclusion initiatives with legal compliance in NYS while navigating the complex national landscape . We’ll break down the legal risks tied to DEI programs and how to design strategies that align with both culture and law.


If you’re working on employment policies, advising clients, or managing legal exposure around DEI, this session is built for you.


Register Here




Monday, March 31, 2025

NAR: Clear Cooperation Stays But With a New Loophole

The National Association of Realtors ("NAR") is shaking up how real estate brokers market properties. After months of debate, NAR announced it will keep its Clear Cooperation Policy ("CCP"), the rule that requires agents to put listings on the MLS within one business day of publicly marketing them. But there's now a twist: NAR is adding a new option called “delayed marketing exempt listings.”


Under the new policy, sellers can opt to delay marketing their property on third-party listing sites that pull data from MLS for a period set by the local MLS. However, the property will still be visible on MLS to MLS participants and subscribers, meaning brokers and agents can still access it. How is this new? Well, the public won’t see it right away on sites like Zillow. This gives sellers and their agents more control over when the listing hits the wider market.


For brokers, this opens up some interesting strategies. A delayed listing could give sellers more time to prepare their property or test the waters with select buyers before going fully public. On the flip side, this could limit public exposure, potentially reducing competition and impacting the final sale price.


Brokers, be aware of the compliance requirements. If a seller opts for delayed marketing, they’ll need to sign a disclosure stating they understand the tradeoff: they’re waiving the benefits of immediate public marketing. It’s also worth keeping an eye on how local MLSs handle the days-on-market ("DOM") rule. Some might count the delayed period toward DOM, which could make a listing look older faster.


At the end of the day, this new policy gives brokers and sellers more flexibility, but with some new risks. Will delayed listings benefit sellers by giving them more control? Or will they reduce transparency and limit buyers’ access to inventory? Let us know your thoughts in the comments.