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. 

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.

• 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.

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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. 

If you’re running a business or involved in corporate compliance, you’ve likely been keeping an eye on the Corporate Transparency Act ("CTA") and its requirements for reporting beneficial ownership information ("BOI"). Well, here’s some news you might welcome: the Financial Crimes Enforcement Network ("FinCEN") has made a change that affects when and how companies need to comply.

 Recent guidance from the Equal Employment Opportunity Commission (EEOC) highlights the importance of understanding your rights, as a majority group plaintiff (white, male, heterosexual, etc.),  under Title VII of the Civil Rights Act of 1964. Specifically, EEOC just released What To Do If You Experience Discrimination Related to DEI at Work and What You Should Know About DEI-Related Discrimination at Work. 

While DEI programs aim to foster inclusive workplaces, they can inadvertently lead to discriminatory practices against majority group employees, if not implemented carefully.

5 Key Takeaways from the EEOC's Guidance:

1. Equal Protection for All: Title VII's protections extend to all workers, regardless of race, sex, or other protected characteristics. The EEOC emphasizes that there is no separate category of "reverse" discrimination, there is only discrimination where majority employees have rights to be free from discrimination and to recover damages if they fall victim.
2. DEI Initiatives Must Be Lawful: Any DEI initiative, policy, program, or practice that motivates employment actions based on race, sex, or another protected characteristic can be deemed unlawful. As such, calling an initiative DEI does not insulate the employer from suit. 
3. "Diversity" as a Business Necessity Is Not a Defense: Employers cannot justify discriminatory actions by claiming a business necessity or interest in "diversity," including client or customer preferences. This is the most essential takeaway.
4. Hostile Work Environments: DEI training itself can create a hostile work environment if it contains discriminatory content, application, or context.
5. Retaliation Protection: Employees who oppose unlawful DEI policies or practices are protected from retaliation under Title VII.

It is crucial to understand that if you believe you have experienced discrimination related to DEI at work, you have the right to seek legal counsel and, to prevail, it's highly advisable that your attorneys are intimately familiar with the McDonnell Douglas Framework in today's climate.

As discussed by Andrew Lieb in the Lawline course, "Reverse Discrimination: McDonnell Douglas in Trump's America," understanding the McDonnell Douglas framework is essential to successfully navigate discrimination claims. This framework, while complex, provides a structure for establishing discrimination, even in situations where the discrimination is not overt. In fact, the EEOC's recent guidance reinforces the importance of this framework. 

If you have been limited, segregated, or classified by your employer based on protected characteristics within DEI programs, you should consult with an attorney immediately. This applies to being denied hiring, promotion, compensation, fringe benefits, access or exclusion from training, access to mentorship or sponsorship or networking, internships, selection for interviews, and job duties or work assignments, as well. In fact, if you were selected for firing or demotion because you were a white, male, heterosexual, or any other traditionally majority characteristic, that is actionable discrimination.  

Don't forget that discrimination laws protect against retaliation where state laws often provide even more protection that just Title VII. So, reverse discrimination victims in the New York City finance & legal world should know that the New York State Human Rights Law protects their future careers if they speak out by creating a further lawsuit against any employer that discloses a personnel file or any other form of discrimination to punish someone for opposing discrimination.

Future-Proof your legal career at Lieb at Law, P.C. 

The legal profession is evolving, and the attorneys who thrive will be those who embrace AI-driven litigation. Lieb at Law, P.C. is seeking ambitious 2L law students to join our firm, part-time, during the school year and full-time during the summer before their 3L year. This role offers a hands-on opportunity to learn how to leverage AI in litigation—from reviewing discovery and drafting motions to developing cutting-edge legal strategies.

Why This Matters for Your Career:

Legal AI isn’t replacing lawyers, but it is replacing outdated legal tasks. If you’re memorizing case law or drafting simple contracts, AI will soon do that faster. The attorneys who thrive in the next era of law will be those who know how to prompt AI effectively, extract the right insights, and use technology to win cases. This role will teach you those skills—making you indispensable as a future litigator.

About the Role: You will be embedded in our high-stakes litigation practice, working alongside seasoned trial attorneys and complex litigators on business disputes, employment litigation, discrimination cases, and real estate litigation. You'll get practice experience evaluating potential claims, crafting legal arguments, engaging in complex litigation strategy and discovery - while also mastering AI tools that will define the next legal revolution.  

Standout Skill Set: 

• Learn how to prompt AI for legal research, discovery analysis, and motion drafting.
• Develop litigation skills that will go beyond the basics, real case strategy, not just boilerplate writing.
• Get exposure to high-profile cases that shape law and policy.
• Work closely with top attorneys and see how cases are won.

Key Responsibilities:.

• Analyze discovery, draft motions, and refine legal arguments
• Screen potential clients and claims to assess case viability and understand what really makes a lawsuit worth pursuing
• Draft tailored legal memoranda, pleadings, and motions (not cookie-cutter templates, but case specific nuanced arguments)
• Engage in discovery strategy, reviewing and responding to crucial case documents
• Work on high-impact cases, including:
  • Civil Rights/Discrimination: Advocating for victims of unlawful discrimination.
  • Employment Litigation: Handling wrongful termination, wage disputes, and whistleblower claims
  • Real Estate Litigation: Navigate contract battles and real estate brokerage claims
  • Commercial Litigation: Tackle business disputes, contract breaches, and fiduciary duty violations

Who Should Apply?

• 2L Law Students looking for part-time school year opportunity and a full time summer clerkship
• 1L Law Students can apply 
• Ambitious students eager to contribute creatively and intellectually to complex litigation cases
• Critical thinkers who want to do real nuanced litigation work
• Curious and resourceful over achievers who want to future-proof their legal career

The Opportunity:

Those who excel in this role may be offered an Associate Attorney position after they graduate, at the sole discretion of the firm. We are looking for the next generation of litigators and if you're ready to take on the future of law, we want to meet you. 

Why Join Lieb at Law, P.C.?

• Invaluable Training: Learn how to evaluate cases and identify the key facts that make them worth pursuing—knowledge that sets the foundation for a successful legal career.
• Tailored Approach: Work on unique, non-boilerplate cases that require creative thinking and nuanced solutions.
• Real-World Impact: Contribute to high-profile litigation that shapes case law and policy.
• Cutting-Edge Tools: Leverage AI-driven legal technology to streamline work and improve outcomes.
• Supportive Team: Work in a collaborative environment that prioritizes mentorship and professional growth.
• Career Advancement: Successful clerks will have the opportunity to transition into an entry-level Associate Attorney position after law school.

About Lieb at Law, P.C.

Lieb at Law, P.C. is a boutique litigation firm recognized for handling high-profile cases for individuals, businesses, and publicly traded companies. From advocating for civil rights to navigating complex business disputes, our firm is dedicated to creating real impact in the legal field.

Our attorneys are licensed in New York, New Jersey, Connecticut, and Colorado, appearing in state and federal courts, as well as before regulatory agencies, real estate boards, and arbitration companies. We take pride in our innovative approaches, including leveraging artificial intelligence, to remain at the forefront of the legal industry.

Encouraging 1L and 2L law students to apply. Send cover letter and resume to careers@liebatlaw.com

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