The Federal Government recently passed the Pregnant Workers Fairness Act (PWFA), which significantly strengthens protections for pregnant workers and enhances the process for addressing discrimination claims related to pregnancy and related medical conditions in several ways including:

• Clear Prohibitions: The PWFA explicitly prohibits discrimination against pregnant employees, including adverse actions, denial of employment opportunities, and coercion. This clarity empowers pregnant workers to assert their rights without fear of retaliation.
  
• Mandatory Reasonable Accommodations: Covered entities are required to make reasonable accommodations for pregnant employees unless it causes undue hardship. This ensures that pregnant workers can continue working without facing unnecessary barriers due to their pregnancy or related medical conditions.

• Interactive Process Requirement: The Act mandates an interactive process between employers and employees to determine appropriate accommodations. This process promotes transparency and collaboration, ensuring that accommodations are tailored to meet the specific needs of pregnant workers.
  
• Expansive Definitions: The PWFA provides comprehensive definitions of terms such as "known limitation" and "related medical conditions," broadening the scope of protections for pregnant workers. This clarity reduces ambiguity and strengthens the basis for discrimination claims.
  
• Limits on Supporting Documentation: The Act imposes limits on the type of supporting documentation employers can request from pregnant employees seeking accommodations. This prevents employers from creating unnecessary barriers or burdens for pregnant workers seeking to exercise their rights.

The Supreme Court just adopted The Simple Injury Standard to identify discriminatory terms and conditions of employment when it ruled unanimously that an employer's act of transferring an employee "from one job to another because she is a woman" (or another protracted trait) is actionable discrimination under Title VII.

The case, Muldrow v. City of St. Louis, states that discrimination is actionable so long as the employee can identify "some harm" regardless if that harm is "significant" because to “discriminate against” refers to “differences in treatment that injure” employees. Specifically, in Muldrow, the plaintiff sued because her "terms [or] conditions" of employment were changed, even though her "rank and pay remained the same," because her new position changed her "responsibilities, perks, and schedule," based on who she was. SCOTUS explained that this "meet[s] that test with room to spare" in overturning the lower court's dismissal based on the now extinct "materially significant disadvantage" standard.  

In Muldrow, the simple injuries experienced that support a discrimination claim were:

1. "She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders." 
2. "She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work." 
3. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car."

Specifically, SCOTUS held that "[a]lthough an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test." That is the new test, resolving a split in the Circuit Courts, as to the definition of an adverse employment action for an employment discrimination claim. 

Attorney Andrew Lieb appears on NewsNation to talk about potential legislation prohibiting discrimination based on weight or obesity. He discusses the potential enforcement of laws against 'weight discrimination' and their implications for employers, including the consideration of obesity as a protected category akin to race or religion in anti-discrimination laws. 

In the discussion, Lieb tackles employers' worries, such as the possibility of a gym or health-centric business being unable to hire someone who doesn't align with their brand ethos. He delves into the intricate legal aspects and underscores the importance of fostering an inclusive work environment, steering clear of shaming individuals.

On November 30, 2023, Governor Hochul signed A0372A establishing a new section of the Public Health Law, Section 2803-c-2. 

This new addition to the Public Health Law combined with Executive Law 296 creates express discriminatory events that are actionable. 

The new Lesbian, Gay, Bisexual, Transgender and People Living with HIV Long Term Care Bill of Rights provides that it is unlawful for a long-term care facility or facility staff member to discriminate against any resident on the basis of such resident's actual or perceived sexual orientation, gender identity or expression, or human immunodeficiency virus (HIV) status. 

Under this new addition facilities are required to post notices about their nondiscrimination policies with information about reporting violations, employ procedures for recordkeeping purposes that include residents' gender identity, correct name as indicated by the resident, preferred pronoun as indicated by the resident, protect personally identifiable information regarding residents' sexual orientation and more. 

Facilities are also now required to ensure that facility staff that are not involved in providing direct care to residents are not present during physical examinations or the provision of personal care without the express permission of the resident or the resident's legally authorized representative and ensure that at least once every two years, each facility staff member who works directly with residents receives training on cultural competency focusing on patients who identify as LGBT and/or HIV.

If a facility  discriminates against an individual protected by Section 2803-c-2, that discriminatory conduct may be actionable under the New York State Human Rights Law. 

On November 17, 2023, Governor Hochul signed Bill A00581, amending NYS' General Obligations Law to prohibit settlements, or other resolution, of sexual harassment claims or any other form of unlawful discrimination from including any term or condition that requires the survivor to pay the defendant liquidated damages if the complainant violates a non-disclosure agreement.

Survivors of sexual harassment and discrimination are often required to sign non-disclosure agreements (NDA) as a condition for receiving compensation for their horror. NDAs frequently include provisions requiring survivors to pay liquidated damages (predetermined damages) if they violate the agreement and these damages can be devastating. 

As a result, survivors, who later change their minds or those who were coerced into signing an NDA, face financial hardships for speaking out about their experience. This new law will protect survivors by no longer allowing financial penalties against them for sharing their stories about experiencing harassment and discrimination.

This Bill takes effect immediately and will apply to agreements entered on or after its effectiveness Agreements can no longer require the survivor to forfeit part or all of the consideration for violating an NDA. Additionally, defendants can no longer require survivors to sign an affirmative statement, assertion, or disclaimer stating that they were not subject to discrimination or retaliation.

New York State Assembly Bill A00501 represents a pivotal change in the state's approach to handling discrimination cases. Historically, the timeframe for raising claims under the New York State Human Rights Law was restricted - only 90 days for court proceedings against the government and a maximum of one year for bringing issues to the Division of Human Rights, with the sole exception of sexual harassment cases. The introduction of this bill, however, marks a significant shift, extending the statute of limitations to three years across the board for filings with the Division of Human Rights for claims against both private and public entities. This is biggest for education discrimination lawsuits that often were capped at a one year lookback period. 

Increased Access to Justice: The extension from one year to three years dramatically broadens the opportunity for individuals who have experienced discrimination to seek legal redress against the government. This is particularly crucial in cases where the complexity of the situation or the victims' circumstances might delay the decision to pursue legal action.

Benefit to School Discrimination Cases: The most notable impacts of this bill will be in the context of school systems. Previously, students or parents alleging discrimination had a mere year to initiate legal action. The extension to three years provides a more reasonable timeframe to prepare and pursue these important cases.

Click here to read Bill A00501.

• Definition and scope of automated decision tools.
• Requirement for annual disparate impact analyses to assess potential discrimination.
• Mandate for transparency and public reporting of the analyses.
• Obligation for landlords to notify applicants when such tools are used.
• Empowerment of the Attorney General and Commissioner to investigate and act upon violations.

On October 30th, 2023, President Biden issued an Executive Order (EO) addressing discrimination caused by artificial intelligence (AI), amongst other topics. 

The White House announced this EO in seeking to prevent AI from leading to and deepening discrimination, bias, and other issues in justice, healthcare, and housing. 

Now, agencies will be empowered to combat algorithmic discrimination, while enforcing existing authorities to protect anti-discrimination rights and safety. 

In summary, the Executive Order: 

• Calls for clear guidelines to keep AI algorithms from being used to exacerbate discrimination by landlords, Federal benefits programs, and Federal contractors.
• Tackles algorithmic discrimination through training, technical assistance, and coordinates with the Department of Justice and Federal civil rights offices for best practices to investigate and prosecute AI civil rights violations.
• Ensures fairness throughout the criminal justice system by developing best practices for the use of AI in sentencing, parole and probation, pretrial release and detention, risk assessments, surveillance, crime forecasting and predictive policing, and forensic analysis.

The Biden Administration Blueprint for an AI Bill of Rights sets out steps those using AI can take to ensure fairness and equality. The steps include regularly checking for and addressing any biases in the design and use of AI systems, using diverse and representative data to avoid discrimination or unfair impacts, ensuring accessibility for people with disabilities during the design and development of AI systems, conducting tests to identify and address any disparities before and after the AI system is in use, providing clear oversight from organizations to ensure fairness, and conducting independent evaluations and sharing easy-to-understand reports, including test results and how any issues are being addressed, to ensure these protective measures are in place.

If companies fail to comply and use AI incorrectly to deepen discrimination and bias, this Executive Order will become the basis for discrimination lawsuits as a result of the incorrect use.

To learn more about the Executive Order click here. To read the Biden Administration Blueprint for an AI Bill of Rights click here. 

On October 25th, 2023 Governor Hochul signed A05010 to amend New York State's education law to prohibit religious private school and non-religious private schools from using corporal punishment on students. This amendments is effective as of October 25th, 2023. 

The bill discusses how every two years, the US Department of Education asks every public school in the country to report on the number of students it has physically punished during the previous year. In an analysis of that data it was revealed that males, young persons of color and students diagnosed with a disability are significantly more likely to be the victims of this abuse by their teachers and school administrators.

If you are  male, person of color, or have been diagnosed with a disability and received corporal punishment at a private school in New York within the last year, you may have a claim for discrimination under New York City Human Rights Law ("NYS Human Rights Law").  

If you are a male, person of color, or have been diagnosed with a disability and received corporal punishment at a private school in New York not within a year you may still have a national claim. 

For males who were enrolled in a religious private school in the last 3 years you may be able to submit gender discrimination claim under Title VI claim. However, Title VI does not include emotional distress damages.  

For persons of color who were enrolled in a private school in the last 4 years you may be able to bring a disparate treatment case, under 1981 and get emotional distress damages. You may also be able to submit a Title VI claim but this won't include emotional distress damages. 

For persons with a diagnosed disability who were enrolled in a private school in the last 3 years you may be able to bring a claim under the Americans with Disability Act and are not limited to non-emotional distress damages. 

If you are not a New York resident you still may have a national claim under Title VI, 1981, and/or Americans with Disability Act. Check your state's local laws to see if you potentially have a claim under state law. 

To read more about this amendment to the education law click here. 

Service dogs play a pivotal role in the lives of many individuals with disabilities, acting as their lifeline in countless situations. Given their importance, it's crucial for people to know their rights when it comes to these trained companions, especially in places of public accommodation and housing. Understanding the legal landscape surrounding service dogs is vital. Those with disabilities deserve to live without fear of discrimination, and it's imperative for facilities and establishments to understand and respect their rights.

The Legal Background:

By way of the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), service dogs are widely acknowledged as reasonable accommodations for those with statutorily recognized disabilities. This recognition extends across the nation, covering a range of establishments, both public and private.

Should anyone find themselves denied these rights, they can legally bring forth a lawsuit for failure-to-accommodate. The range of potential damages is extensive, from recovery for emotional distress and other compensatory damages (like expenses that arose due to the denial) to punitive damages based on the circumstances and the intent behind the denial. Significantly, victims might be awarded attorneys' fees, ensuring they can secure top-notch representation without bearing the financial burden.

For a successful claim, victims must substantiate five key elements:

1. Proof of a statutorily recognized disability.
2. Evidence that the discriminator knew (or reasonably should have known) about the disability.
3. The asserted accommodation (i.e., the service dog) should not pose undue hardship, making it reasonable.
4. The service animal must directly address the needs of the person with the disability, signifying its necessity.
5. There must have been a denial of the accommodation or a refusal to participate in the interactive process.

It's important to note that state laws can sometimes offer even more protection to victims. For instance, the New York State Human Rights Law expands on the federal definition of disabilities. Unlike federal law, it doesn't demand that an impairment substantially impacts a major life activity to be recognized. Given these intricacies, victims are advised to consult with a discrimination attorney before taking any action, apart from promptly documenting the 6 Ws of Discrimination: Who, What, When, Where, Why, and Witnesses. The process is far from simple.

Service Animal vs. Emotional Support Animal: The Distinction Matters:

It's pertinent to highlight the differentiation between a service animal and an emotional support animal. Under the ADA, this distinction becomes relevant in public places. Yet, under the FHA, both these categories are considered viable reasonable accommodations. Some states, like New York, recognize rights to emotional support animals at public places as well. 

The bone of contention here lies in the inherent definitions. As per the Code of Federal Regulations, a service animal is explicitly trained to execute tasks or perform work benefiting an individual with a disability. This can range from physical and sensory disabilities to psychiatric or intellectual ones. In contrast, emotional support animals don't undergo such specialized training. It's essential to recognize that proving a service animal's training and the necessity of its skills requires evidence.

Relying on a conversation with a representative at the ADA is fraught with risk. The interpretation of the law should be grounded in statutes, regulations, and case law, not someone's subjective opinion. Facilities would do well to engage with their legal counsel in such situations and embark on the 'interactive process' as necessitated by the ADA.

Attorney Andrew Lieb joins Newsmax to debate with Heritage Foundation attorney about a lawsuit trying to let foster parents discriminate against children's sexual orientation by blaming free speech and religious rights. Lieb argues on behalf of the children from the perspective of the Massachusetts Department of Children and Families in defending the decision to deny the couple's foster application. He cites Massachusetts regulations requiring foster parents to support and affirm the sexual orientation and gender identities of LGBTQ foster children. Lieb claims this policy is needed to ensure vulnerable foster children know that they will be loved no matter who they are because the Constitution guarantees equal protection under the law.

Attorney Andrew Lieb was featured in The New York Times, shedding light on a troubling discrimination case in a 55+ community. The homeowners association issued a rule permitting single owners to bring guests to the pool but restricting married couples to only bringing their spouses. Such unequal treatment may potentially fall under housing discrimination, protected by the New York State Human Rights Law. Read the article here: https://www.nytimes.com/2023/07/29/realestate/my-55-community-is-discriminating-against-me-what-power-do-i-have.html 

Breaking the Silence on Race Discrimination

Check out this powerful story about our client, Julio Germain, who faced shocking racism and discrimination at the Suffolk County Department of Public Works.

Julio Germain, a 38-year-old DPW employee, endured years of racist and discriminatory behavior from his co-workers and supervisors.

Julio bravely reported the misconduct, but management ignored his complaints and even retaliated by denying him promotions.

With the help of our team, Julio filed a complaint with the New York State Division of Human Rights, and they have confirmed that there's probable cause to believe Suffolk County DPW engaged in unlawful discriminatory practices.

As the law firm representing Julio, we firmly stand against any form of discrimination, and we won't rest until justice is served.

Please share this story and let's create awareness to put an end to racism and discrimination in the workplace. Together, we can make a difference!

NYS law is that the refusal to rent or lease based on "lawful source of income" constitutes actionable discrimination under Executive Law 296(5)(a)(1). 

Now, the Hon. Mark  G. Masler of the State Supreme Court, County of Tompkins, in James v. Commons West, LLC, et al., has found this anti-discrimination law to be unconstitutional because it compels landlords to have their business records and property inspected incident to being compelled to participate in Section 8, all in violation of the 4th Amendment to the US Constitution and Article I, Section 12 of the NYS Constitution. 

This case is surely going to be appealed - do you think mandatory participation in Section 8 constitutes an unreasonable search and seizure? 

Andrew Lieb, a Long Island attorney and legal analyst at Lieb at Law PC, recently spoke with CBS Radio regarding two important Supreme Court rulings. 

First, Lieb discussed the ruling on student debt forgiveness where the court disagreed with President Biden's plan for debt forgiveness. Lieb summarized the situation: "We're talking about this HEROES Act and the Biden administration has relied on this act...And the question becomes does the HEROES Act give the Biden administration the power they want?" The Supreme Court's decision effectively denies the administration's ability to forgive debt based on this Act.

In the second case, Lieb shed light on LGBT discrimination by explaining that it was a freedom of speech case rather than a discrimination case, despite the headlines stating otherwise. The case involved a Christian graphic artist refusing to make specific websites about same-sex couples rather than refusing to work for LGBT people overall. Lieb clarified that the ruling does not permit the denial of services based on sexual orientation. Rather, it emphasizes that "certain creative people speak through their creativity...while you have to serve anyone...all she said is that when she writes the cake, she's not going to make a product with her speech that goes against what she wants to do." This distinction emphasizes that the court's ruling protects creative expression and not discriminatory practices.