National interview with NEWSY and Attorney Andrew Lieb about the increase of labor unions across america.

Discrimination in real estate is illegal throughout the United States and in certain states, like New York, there are even greater protections, rights, and damages available to victims.

Whether you were discriminated against by a seller, landlord, tenant co-op, condo, HOA, lender, real estate broker / salesperson, or property manager, you are entitled to compensation. This is true in housing and at places of public accommodation (i.e., shopping center, professional office, retail store, educational institution, recreational facility, and service center). This is often even true if the discrimination was unintentional or caused by the perpetrator's implicit biases.

Anti-discrimination rights and protections entitle victims to sue for compensation if discrimination occurred because of your protected status / protected class, which statuses / classes vary throughout the United States, but may include your race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

The law prevents real estate / housing providers from changing the terms, conditions, privileges, and/or availability of property based on your protected class status. It requires real estate brokers / salespersons to give you written disclosures that advise you of your rights. It prevents you from being treated differently from others where only the terms of your offer matter, not who you are.

If you are handicapped / disabled, you are also entitled to receive reasonable accommodations (change to policies / procedures / rules) and reasonable modification (change to structure) so that you can equally use and enjoy property. Plus, your actual diagnosis need not be fully revealed and can remain confidential when you seek such an accommodation / modification. Better yet, the cost of the accommodation cannot be charged to you, and in places like New York City, this is also true for the cost of modifications. The most common handicap / disability cases that we see involve service animals / emotional support animals in no pet properties, preferential / parking and ingress / egress ramps for mobility impairments, and other failure-to-accommodate cases. We are also involved in ADA failure-to-remove barrier cases and more. When it comes to handicapped / disabled people, it's all about providing access. 

If you receive subsidies, like Section 8 (Housing Choice Vouchers), or you are unemployed (i.e., retired, spousal / child support recipient, trust fund baby, student, disabled), your source of income cannot impact your housing choices. You are protected from offensive signage, improper applications, and/or wrongful questionnaires if they inquire about your employment status, request your W-2, or even solicit a letter of employment. Simply, seeing your voucher cannot be a prerequisite to seeing / viewing an apartment. Where you get the rent should be no one's business. 

Don't be afraid to speak-up. If you are advancing a fair housing and/or anti-discrimination right, you are protected from retaliation. Even if it is ultimately found that you were not discriminated against, you can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. This is not just true if you are advancing your own rights, it also applies if you are an ally who is aiding and/or encouraging someone else to exercise their rights to be free from discrimination.

Fair housing laws make housing available to everyone without stigma, loss of dignity, or other harms. If you are a victim, you can recover compensatory damages (being made whole), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. Discrimination is wrong and must be stopped.

What are the Continuing Education requirements for real estate agents in NY?

As of 9/21/2022. All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements. The 22.5 hours must include:

• 3 hours on Fair Housing &/or Discrimination
• 2.5 hours on Ethical Business Practices
• 1 hour on Recent Legal Matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the Law of Agency (2 hours in the initial 2-year cycle)
• 2 hours of Implicit Bias Awareness
• 2 hours of Cultural Competency Training

Effective September 21, 2022, as part of the 22.5 hours of continuing education required to renew both real estate salespersons and brokers will be required to complete at least 2 hours of instruction pertaining to implicit bias awareness and at least two hours of cultural competency training. Implicit bias is defined as the attitudes or stereotypes that affect an individual’s understanding, actions and decisions in an unconscious manner. Cultural competency is defined as understanding cultural norms, preferences and challenges within our diverse communities.

Below lists the new requirements effective September 21, 2022.

Any real estate licensee submitting an application for renewal for a license expiring on or after September 21, 2022 must successfully complete 22.5 hours of approved continuing education. The education must include at least two hours on the subject of cultural competency, at least two hours on the subject of implicit bias, at least two and a half hours on the subject of ethical business practices, at least one hour of recent legal matters, at least three hours of instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property and at least one hour of instruction pertaining to the law of agency except in the case of the initial two-year licensing term for real estate salespersons, two hours of agency related instruction must be completed within the two-year period immediately preceding a renewal.

If you are renewing your license before 9/21/22: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements, including the new subjects prior to submitting a renewal on or after 7/1/2021. The 22.5 hours must include:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)

Are there any exemptions for Continuing Education requirements for real estate agents in New York?

NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements, including the new subjects prior to submitting a renewal on or after 7/1/2021.

To satisfy your 2022 NY real estate continuing education requirements you can take our Package F. 

The Stop Sexual Assault and Harassment in Transportation Act passed the House on March 30, 2022 and now makes its way to the senate. 

If passed, the Act will require airlines, railroads, vessels, buses, and transit entities (e.g., Uber / Lyft) to establish "a formal policy with respect to transportation sexual assault or harassment incidents" together with appropriate trainings. 

It is specifically designed to notice, warn, prevent, and combat sexual assault and harassment by the public and staff making transportation safe for all involved. 

The Act establishes civil penalties against harassers starting at $35,000. 

Shouldn't it be safe to travel and shouldn't it be safe to work in transit?

The NYC Commission on Human Rights published its FAQ that needs to be reviewed and adhered to by any employer advertising positions that may be performed in NYC starting on May 15, 2022.  

If you are an employer who is seeking an employee whose job may be performed, in whole or in part, in NYC, you will need to comply with Local Law 32 of 2022, which requires salary transparency. 

To comply, employers' advertisements "must state the minimum and maximum salary they in good faith believe at the time of the posting." 

Be sure to do this correctly because the FAQ reminds employers that "[e]mployers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees and civil penalties of up to $250,000."

On March 18, 2022, a new NYS law provides that a General Contractor will now have 10 business days from receipt of notice of unpaid wages by a subcontractor's employee to pay such subcontractor's employee earned wages, benefits, and/or wage supplements earned, or such General Contractors can be sued for the wages for the previous 3 years. 

General Contractors must implement hour tracking for their subcontractors' employees immediately because they are liable for time and a half for overtime. 

Plus, General Contractors should act swiftly if they receive the new statutory 10 business day notice because if the subcontractors' employee sues, they will be liable for statutory penalties (liquidated damages) plus attorneys' fees in a court case.

On March 18, 2022, Governor Hochul signed S7733 into law and clarified that "the awarding of attorney's fees in credit discrimination cases is not limited to only those discrimination cases alleging sex-based discrimination."

This law is particularly important for race discrimination, which is highly prevalent in the credit discrimination arena. 

Regardless, whenever a victim can recover his / her / its legal fees incident to overcoming discrimination, that's a good thing and this clarification is helpful for discrimination victims throughout NYS.

What happens when there is "an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views?" 

Stated otherwise, isn't allowing an employer to deny a job to someone who disagrees with their religious views a license to discriminate? 

To get specific, what should happen if a religious employer refuses to hire a bisexual applicant in a same-sex relationship just because of such orientation and relationship status? 

Should it matter if that applicant applied to work as a staff attorney rather than as a minister for the employer? 

While the US Supreme Court declined their opportunity to let us know for sure, with binding precedent, in Seattle's Union Gospel Mission v. Woods, their denial of certiorari seemingly indicates that they are inclined to allow religious employers to discriminate against same-sex individuals and prevent such individuals from working in any aspect within the organization, even outside of a religious job like a minister. 

A new anti-discrimination law is set to replace the current Standard Operating Procedure Law for NYS real estate brokers / salespersons. 

The current law is explained at our blog here and Governor Hochul's prior memorandum, from when she signed such law, indicating a change in the future, is here. 

Now, Governor Hochul has signed S7729 and made her promised changes to the Standard Operating Procedure Law. 

If you are confused, here is the Lieb Cast discussing this confusion and straightening it all out.

Here are the big 4 takeaways:

1. Real Estate Brokers must have Standard Operating Procedures (SOPs) as to:

(i) whether prospective clients shall show identification;

(ii) whether an exclusive broker agreement is required; [and]

(iii) whether pre-approval for a mortgage loan is required; and

(iv) any other such standard operating procedures as the Secretary of State shall determine by regulation and upon notice and public hearing. 

2. Rather than brokerage firms being required to submit such SOPs to the Secretary of State, as required under the current law, under the new law, they will be required to first date stamp and notarize their SOPs, and then, post them on any publicly available website and mobile device application that the brokerage / team(s) / salesperson(s) maintain while also making them available, on request, to the public at their office locations;

3. On license renewal, brokers will be required to affirm their compliance with the new law to the Department of State; and 

4. Brokers must follow the current law until July 16, 2022 when this new law is first effective.

Remember, brokers who stray from their SOPs are going to have to explain, to DOS and/or in a discrimination lawsuit, why a particular buyer / tenant is being treated differently from the SOPs and how that act does not constitute discrimination.

If you think that you are being discriminated against at work, in housing, within education, or during any other aspect of your life, you should take the following 5 steps immediately:

1. Make Records: Memory fades and uncorroborated facts are unbelievable so you need to create evidence if you plan to bring a discrimination claim. If you live in a state like NY, where recording a conversation only requires one-party consent, then, start recording all of your conversations with witnesses and perpetrators immediately. If not, stick to a daily diary of events. Either way, get that evidence recorded starting now.
2. Save Documents: If discrimination is occuring at work, make sure to take all of your employment agreements, policy manuals, and procedure documents and put them onto your personal computer or turn them into printed form. If discrimination is happening in housing, compile your lease, house rules, and all other written documents and make sure they are similarly saved. Remember, from the moment that you believe that you are a discrimination victim, you need to start creating a file of all the relevant documents to the discriminatory events, including everything peripheral thereto. When in doubt as to whether a document is relevant, save the document. 
3. Befriend Witnesses: They say it takes a village and that couldn't be more true when you are trying to overcome discrimination that is wronging you. To win a discrimination case, you need allies and advocates in your corner. Did you know that your allies are also protected under discrimination law and can bring a claim themselves if they face retaliation for assisting you? 
4. Stay Strong: Most victims are afraid to fight for their rights because they fear that they will face a worse situation if they speak up. If this is you, please know that every act of retaliation against you gives you a further legal claim against the perpetrator. Did you know that even if you lose your discrimination case, you can still recover damages on a retaliation claim? So, don't be afraid to speak up and fight for your rights.  
5. Protect Yourself: This is the most important tip that we can give. You should always worry less about your ability to sue for damages incident to being discriminated against and worry more about being safe. If you feel in danger, always get out of that situation immediately and call the police. 

On March 16, 2022, the NYS Division of Human Rights published Revised Rule Making, HRT-15-21-00005-RP (proposed 19 NYCRR 466.15), with respect to the notice that tenants must receive, which explains their rights to receive reasonable modifications and accommodations in housing. 

The proposed regulation provides that:

• Real Estate Brokers are charged with making this disclosure "[u]pon the first substantive contact." 
• Housing providers are charged with providing this disclosure to current and new tenants. 
• Housing providers must post the notice on all of their websites.

Here is what the notice should state:

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES 

Reasonable Accommodations

The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities.

For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling —or —, or by e-mailing — * . You will need to inform your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider.

A housing provider may request medical information, when necessary to support that there is a covered disability and that the need for the accommodation is disability related.

If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice. 

Specifically, if you have a physical, mental, or medical impairment, you can request: 

• Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out); 
• Changes to your housing provider’s rules, policies, practices, or services;
• Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

• If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building.
• If your healthcare provider provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.
• If you need grab bars in your bathroom, you can request permission to install them at your own expense.
• If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.
• If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available.
• If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards All buildings constructed for use after March 13, 1991, are required to meet the following standards:

• Public and common areas must be readily accessible to and usable by persons with disabilities;
• All doors must be sufficiently wide to allow passage by persons in wheelchairs; and
• All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint A complaint must be filed with the Division within one year of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644 with questions about your rights. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

The public can comment on this Revised Rule Making until April 30, 2022 by email to  Caroline.Downey@dhr.ny.gov with subject of I.D. No. HRT-15-21-00005-RP

We always tell discrimination victims that you are protected from retaliation. In fact, if you are retaliated against, you can sue for that too. Interestingly, if you are retaliated against on an alleged discriminatory event, which is ultimately found in court to not constitute discrimination, you can nonetheless recover damages for the retaliation on that non-discrimination.

Retaliation protection is really important so that victims have a voice and are not silenced by powerful companies. 

Yet, the bounds of retaliation are rarely defined and employees often wonder what an employer can do against them if they complain about discrimination.

On March 16, 2022, Governor Hochul clarified the answer to that question by signing S5870 into law and thereby expanding the definition of retaliation, at Executive Law 296(7), to now include: 

Disclosing an employee's personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article, except where such disclosure is made in the court of commencing or responding to a complaint in any proceeding under this article or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.

However, as always, clarity brings more confusion. While the law's stated purpose is "[t]o clarify that release of personnel records to discount victims of workplace discrimination counts as a retaliatory action...," the law fails to define "personnel records" and, as such, questions remain.

Specifically, how many small / medium businesses even record "personnel record"?

Is a boss disclosing their memory of an event, which is unrelated to the discrimination complained of, a personally record? 

Is the work product of a discriminatory complainant a personnel record?

All we can say is that discrimination laws are designed to protect victims. So, if you are confused, assume that everything related to the employee is a personnel record until a court narrows that definition when this issue is eventually fought out before a judge / jury.

Until then, more protections for victims is a welcome sign in NYS that discriminatory retaliation won't be tolerated.

Last week, we reported that Caregiver Discrimination Protection passed the NYS Senate. 

Interestingly, this week, the US Equal Employment Opportunity Commission (EEOC) published an update on Caregiver Discrimination Under Federal Employment Discrimination Laws. 

This document reminds employers and employees that "it would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives."

In fact, there are 18 FAQ reminders that should be studied by anyone who has the responsibility to balance caring for another with their job responsibilities. 

Also, employers should review the document and focus in on the Best Practices for Workers with Caregiving Responsibilities to update their EEO policies. 

On 3/15/2022, 3 important workplace discrimination laws made their way to the NYS Governor's Desk to be signed and enacted. 

A7101 - Prohibits the release of personnel records as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers.

On March 8, 2022, S5063 was passed by the NYS Senate. It's now with the Assembly. 

The law would prohibit employers from discriminating against individuals based on such individual's status as a caregiver. 

This law will fill an important protection for employees who typically argue familial status discrimination or sex discrimination in such circumstances, but both categories really are like fitting a square peg in a round hole. 

As the Bill's Justification explains, "18 percent of adults in the United States have caregiving responsibilities" and these people need access to reasonable accommodations in limited circumstances, such as supervising "the diagnosis, care, or treatment of mental or physical illness, injury, or health condition of the care recipient." 

In NYC, caregiver status is already protected. So, if you work there, you already have rights. 

According to the NYS Bar Association, in Ethics Opinion 1237, "A lawyer may not accept the referral of real estate closings from a real estate agent who is associated with a real estate company owned by the lawyer where the real estate agent and the real estate company will split the brokerage commission earned on the real estate transaction, regardless of whether the attorney agrees to waive in favor of the real estate clients the portion of the real estate commission due to his real estate agency."

So, a broker / lawyer cannot take referrals of closings from an agent who works at that lawyer's / broker's real estate brokerage. It does not matter if the lawyer "waived any brokerage commission" he would otherwise receive in favor of his client. 

The reason is that his agent will nonetheless receive a commission split and that constitutes the payment for referrals. 

The takeaway is that an attorney should choose to do closings or work in brokerage, not both.

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?