Title IX's anti-discrimination obligations on elementary schools, secondary schools, postsecondary institutions, and other recipients of federal financial assistance have been updated and become effective August 1, 2024, by regulation 89 FR 33474 (34 CFR 106)

Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” absent certain exceptions. 20 U.S.C. 1681.

Consistent with Title VII's SCOTUS decision in Bostock v. Clayton County, the regulations define sex broadly to "include[] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity" in § 106.10.

The regulations have been updated for the following purposes:

• "to provide greater clarity regarding: 
• the definition of “sex-based harassment”; 
• the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and 
• recipients' obligations to provide an educational environment free from discrimination on the basis of sex."
• to ensure that "recipients' procedures for investigating and resolving complaints of sex discrimination are fair to all involved." 

The Federal Trade Commission (FTC) has just issued a Non-Compete Clause Rule banning all Non-Competes. 

This Final Rule provides that it is an unfair method of competition for persons to, among other things, enter into non-compete clauses. While this Final Rule does not include a salary threshold, it does allow for non-competes when a business is sold, and also allows existing non-competes to be enforced for senior executives.

So, existing non-competes for workers, who are not senior executives, are no longer enforceable (retroactively undoing contracts). Is that a violation of due process / impermissible taking for employers? Are constitutional challenges next?  

Yet, the most interesting paragraph of the Final Rule reads:

Non-solicitation agreements are generally not non-compete clauses under the final rule because, while they restrict who a worker may contact after they leave their job, they do not by their terms or necessarily in their effect prevent a worker from seeking or accepting other work or starting a business. However, non-solicitation agreements can satisfy the definition of non-compete clause in § 910.1 where they function to prevent a worker from seeking or accepting other work or starting a business after their employment ends. Whether a non-solicitation agreement—or a no-hire agreement or a no-business agreement, both of which were referenced by commenters, as discussed previously—meets this threshold is a fact-specific inquiry. The Commission further notes that—like all the restrictive employment agreements described in this Part III.D—non-solicitation agreements, no-hire, and no-business agreements are subject to section 5’s prohibition of unfair methods of competition, irrespective of whether they are covered by the final rule. 

Moving forward, non-competes are mostly gone, but non-solicitation agreements, no-hire, and no-business agreements are clearly also on the chopping block where the utilization of each could easily result in protected litigation as to whether they are covered by the Final Rule or generally by section 5's prohibition of unfair methods of competition.

You can read the FTC's press release here.

You can read the Final Non-Compete Clause Rule here.  

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.

• Anti Competitive Practices
• Breach of Fiduciary Duty
• Commission Disputes / Affidavits of Entitlement
• Fair Housing & Discrimination
• False Advertising
• Fraud / Fraudulent Inducement
• License Law Violations and Administrative Complaints before the Government
• NAR / REBNY Ethics & MLS / RLS Complaints
• Subpoenaed Non-Party Witness Representation

Contact Lieb at Law today.  

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Real estate discrimination must be fought any time you’re buying, selling, or renting any type of housing or commercial property. Real estate discrimination involves unfair treatment because of your source of income, disability, race, religion, sex, gender, and many other protected classes. Because discrimination in the housing market can be attributed to so many factors, it’s crucial for buyers, sellers, and renters to be familiar with their rights. Learn more about real estate discrimination through our answers to your most frequently asked questions below.

If you are a real estate broker or salesperson charged with discrimination, contact Lieb at Law to learn how we can defend you with our team of real estate discrimination lawyers.

Is real estate discrimination illegal?

Yes. Discrimination in real estate is illegal throughout the United States. In some states, like New York, there are even greater protections, rights, and damages available to victims of housing discrimination. You are entitled to compensation whether you were discriminated against by a seller, landlord, tenant co-op, condo, HOA, lender, real estate broker, salesperson, or property manager.

Does real estate discrimination only apply to housing?

No. Real estate discrimination laws apply to both housing and places of public accommodation. Examples include shopping centers, professional offices, retail stores, recreational facilities, service centers, and educational institutions.

Can I sue for housing discrimination?

Yes. Not only is it possible to sue for real estate discrimination, but Lieb at Law, P.C. has helped countless individuals recover compensatory damages and punitive damages for the emotional distress inflicted by this unlawful act. If you or a loved one were discriminated against because of your protected status or class, it is critical to work with an experienced attorney who will fight to ensure that you receive the compensation you deserve.

What qualifies as discrimination?

Discrimination is classified as unfair treatment to an individual because of their protected status or class. These statuses/classes vary throughout the United States, but may include 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.

Can a real estate / housing provider change the terms of a lease or contract based on my protected class?

No. 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.

Are handicapped individuals entitled to housing accommodations?

Yes. If you are handicapped or disabled, you are entitled to receive reasonable accommodations and reasonable modifications to allow you to equally use and enjoy the property. Your actual diagnosis does not need to be revealed and can remain confidential if you seek an accommodation or modification. In addition, the cost of the accommodation cannot be charged to you. In places like New York City, the cost of modifications cannot be charged to you either.

What are common examples of disability cases concerning housing discrimination?

The most common handicap and disability cases that we see involve service animals or emotional support animals in no pet properties. Other types of cases include parking issues, egress ramps for mobility impairments, and additional failure-to-accommodate cases. When it comes to accommodating the rights of handicapped and disabled individuals, providing access is essential.

Can I be discriminated against based on my source of income?

Whether you receive subsidies, like Section 8 (Housing Choice Vouchers), or are unemployed and receive child support, disability, spousal support, or have a trust fund, your source of income cannot impact your housing choices. The law protects you from offensive signage, improper applications, and/or wrongful questionnaires if they inquire about your employment status, request your W-2, or solicit a letter of employment. Where you get your rent money is your business and yours alone.

Can I be retaliated against if I proceed with a discrimination lawsuit?

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 be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination 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.

What happens if I win my housing discrimination case?

As the victim, you can recover compensatory damages, punitive damages, and your attorneys’ fees. The perpetrator can lose their license (if applicable), be required to take trainings, be made to pay fines, and be ordered to stop their offensive behavior. Working with a top discrimination attorney affords you the best possible chance at a successful outcome to your case. If you or a loved one has been treated unfairly and is in need of legal assistance, contact Lieb at Law today.

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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. 

On March 14, 2024, New York State's Court of Appeals rendered its decision on Syeed v. Bloomberg L.P., which holds that New York City and New York State Human Rights Laws apply to nonresidents who are not yet even employed by a company in the city or state, but who are proactively seeking an actual city or state based job opportunity. 

This decision expands the protections of NY's / NYC's discrimination laws to include individuals who were denied employment based on discrimination even if said individuals were not yet residents or employees in New York State or City.

If you'd like to read the case and learn more about the court's decision, click here. 

• Addressing Mishandled Mobility Devices: Passengers with disabilities often experience damage or loss of their mobility devices during air travel, leading to significant distress and inconvenience. The proposed rule seeks to establish stringent guidelines to mitigate such incidents and hold airlines accountable for the proper handling of mobility devices.
• Ensuring Proper Transfers: Passengers with disabilities often face challenges in navigating these transitions, leading to potential safety risks and infringements on their dignity. The proposed rule aims to implement measures to ensure that passengers receive the necessary support and assistance throughout the travel process.

Today, we bring to your attention the recent release of pivotal data by the U.S. Equal Employment Opportunity Commission (EEOC). This data, encompassing information from 2017 and 2018, provides an insightful glimpse into the state of pay disparities in American workplaces., which is illegal based on the Equal Pay Act. To learn more about the Equal Pay Act, take a CLE from Attorney Andrew Lieb here.

Key EEOC Findings:

The EEOC's data dashboard reveals a troubling reality: pay disparities based on sex and race persist across nearly every industry and state. Here are some crucial highlights:

• Gender Disparities: The data unequivocally shows that men continue to outearn women, with the median pay band for men consistently higher than that for women. In 2018, this gap was particularly pronounced, with men's median pay band being one or even two bands higher than women's.
• Racial Disparities: The disparities deepen when considering race and ethnicity. Black or African American women and American Indian or Alaska Native women find themselves in the lowest median pay bands, reflecting a distressing pattern of inequality.
• Industry and Job Category Trends: Across various industries and job categories, men consistently occupy higher median pay bands compared to women. While some sectors exhibit equal median pay bands, such as Accommodation and Food Services, these instances remain exceptions rather than the norm.
• Geographical Disparities: Disparities are not confined to specific industries or job categories but are pervasive across different states. For instance, in 2018, Wyoming, Louisiana, and West Virginia exhibited significant differences in median pay bands between men and women.

• Equal Pay Act and Title VII: The EEOC enforces both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, which prohibit pay discrimination based on sex, race, color, national origin, and religion. If you believe that you have experienced pay discrimination, you may have legal grounds to pursue a case and if you live in a State, like New York, you can go back up to 3 years on the state's anti-discrimination law to bring your case.
• Data as Evidence: The aggregated data provided by the EEOC can serve as compelling evidence in legal proceedings. If you find that your pay is unfairly lower compared to colleagues of a different
  gender or race in similar roles, this data can bolster your case.
• Consultation: If you suspect pay discrimination in your workplace or have questions about your rights, we encourage you to seek legal consultation. Lieb at Law, P.C. is here to provide guidance and support as you navigate the complexities of employment law.

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On March 1, 2024, Governor Hochul signed A8544 to amend NY's limited liability company law relating to the disclosure of beneficial owners of limited liability companies ("LLC"). 

This bill amends a law from 2023, which was enacted to end the practice of anonymous ownership of LLCs in New York. 

The new law adds Limited Liability Company Law sections 1106, 1107 and 1108, which does the following, in summary:

• All filings must be submitted electronically to the Department of State ("DOS")
• The time frame for which beneficial ownership disclosure ("BOD") filings and fees must be submitted to the DOS are now, for new entities, BODs must be filed within 30 days of the initial filing of articles of organization; and for all previously formed or authorized reporting companies, BODs must be filed within 1 year of the effective date of the bill. 
• All beneficial ownership information will be kept confidential with exceptions for: (1) voluntary consent or request; (2) court order; (3) officers and employees of federal, state, and local government agencies where disclosure is necessary to perform official duties; or (4) valid law enforcement purposes. 
• Attorney General can now enforce the BOD rules.
• The penalties are now up to $500 for each day an LLC fails to disclose beneficial owners to the DOS. 
• LLCs are now provided with the ability to cure any past due beneficial ownership filings by providing updated filings and a payment of $250 to the DOS. 
• It is unlawful for any person to knowingly provide false or fraudulent beneficial ownership information to the DOS. 
• The Attorney General can now investigate any LLC which fails to file its BOD statements, annual statements or attestations of exemptions and seek fines up to $500 per day for late filings. 
• The Attorney General can bring actions to dissolve or cancel any entity that is delinquent in filing its BOD or that provides false or fraudulent information in their disclosure. 
• Any LLC that fails to file its BODs or attestation of exemptions be suspended by DOS after a 30 day notice period.  

These changes are effective on January 1, 2026, the same date and in the same manner as Chapter 772. To learn more about Chapter 772 read our blog post here(need to post and link). To learn more about Bill No. A08544, click here. 

NYS' Senate passed a bill, S345, on February 28, 2024, that would change the look-back period (a/k/a, statute of limitations) for employment discrimination in the State from 3 years to 6 years. 

Under Title VII, federally, employees only have 300 days to bring claims so moving the deadline for state claims from 3 years to 6 years would be huge.

How long is the right period that employees should be able to sue for employment discrimination? 

Do you think the Assembly should pass this bill or let it die like they did last time around?

On February 15, 2024, The New York State Court of Appeals issued their decision in the Matter of Clifton Park Apts., LLC v. New York State Div. of Human Rights. 

We now know that the "threat of litigation" may support a retaliation claim under the New York State Human Rights law (Executive Law 296). So, if you notice a claim of discrimination and the perpetrator then threatens suing you for other reasons, you likely have a retaliation claim in NYS. 

That's why it is imperative that victims immediately notice perpetrators of their claims in a notice of preservation, notice to insurance, and demand letter. This is how you protect yourself. 

To read the decision, click here.

Attorney Andrew Lieb is conducting a Continuing Legal Education course on Thursday, March 14, 2024 through the Connecticut Bar Association. 

Proving and Calculating Front Pay and Back Pay in Employment Cases (EDU240314)

On February 16, 2024, the Financial Crimes Enforcement Network (FinCEN) proposed a new rule to mandate certain individuals involved in real estate closings and settlements to report and maintain records on non-financed transfers of residential real property to specific legal entities and trusts nationwide. This proposed rule is called the Anti-Money Laundering Regulations for Residential Real Estate Transfers. 

Reporting persons ("RP") include, but are not limited, to real estate agents, title insurance companies, settlement agents, and attorneys. There is a “cascading” approach, based on the function performed by the person in the real estate closing and settlement that determines which RP has the burden to report. Regardless, real estate professionals would also have the option to designate a reporting person from among those in the cascade by agreement.

RPs are required to report:

1. The names and addresses of reporting persons, transferee entities, transferee trusts, signing individuals, transferors, and any beneficial owners.
2. The citizenship details for all beneficial owners of transferee entities or transferee trusts.
3. The unique identifiers, such as IRS Taxpayer Identification Numbers (TINs), for individuals and entities involved in the transactions.
4. A description of the capacity in which the signing individual is authorized to act, such as legal representative or employee.
5. The details about the total consideration paid for the property, method of payment, accounts used, and the names of payors if different from the transferee entity or trust.
6. The address of the property and a legal description, such as section, lot, and block.

RPs must e-file the report with FinCEN within 30 calendar days after the transferee entity or transferee trust receives the ownership interest in the residential real property. RPs must maintain a copy of the report, any certifications regarding beneficial ownership, and any designation agreements for five years from the date of the report filing.

Note that transfers of real property to individuals, as opposed to an entity (LLC, Corp, LLP) are not covered by this proposed rule. 

If this rule is adopted the effective date will be one year from the date the final rule is issued. This time period is to allow real estate professionals to have sufficient time to review and prepare for the implementation of the reporting requirements. 

Written comments about this proposed rule are being accepted and must be submitted on or before April 16, 2024 by utilizing this link.

On February 8, 2024, the Supreme Court of the United States rendered its decision for Murray v. UBS Sec., LLC, No. 22-660 (U.S. Feb. 8, 2024). 

The Court held that "[a] whistleblower who invokes [Sarbanes-Oxley] must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with 'retaliatory intent.'”

As such, whistleblowers now have a much lower burden when they are retaliated against for reporting to supervisors or the government their reasonable belief of financial crimes, like wire fraud, securities fraud, violating the SEC, or federal law. 

New York has made a significant advancement in healthcare decision-making with the signing of Assembly Bill A8521, allowing for the remote witnessing of health care proxies. This amendment to the state technology law acknowledges the importance of accessibility and safety in legal processes, particularly in times when in-person witnessing is not feasible. Health care proxies, vital for appointing a trusted individual to make health care decisions on one's behalf if incapacitated, can now be witnessed remotely, ensuring individuals' health care wishes are respected even in challenging circumstances.

On January 26, 2024, Governor Hochul signed Bill No. S8036, which goes into effect immediately. This bill amends NYS's general business law, prohibiting the installation of certain security devices used to control access to common areas of a residential buildings without proper authorization and notice. 

This bill requires:  

1. The written permission of the owners, board of managers, board of directors, or authorized party of residential buildings for the installation of certain security devices. 
2. If written permission is given, then occupants of a residential building must be given 30 days notice prior to the installation of keyless security devices.
3. The written notice must be either delivered to each individual unit or be posted in a conspicuous location in each common area accessible to residents for 30 days.

Further, the bill provides that under no circumstances may the installation of keyless security devices obstruct or adversely impact the manner in which residents of the residential building access it. 

To learn more about Bill No. S8036 click here. How do you see the balance being struck between security regulations and residents' rights? We want to know—comment below!

An updated version of the Suffolk County Human Rights Law was just released. It has an amended section 528-10(A) as to credit discrimination - mortgage lending, which states as follows:

Unlawful discriminatory practices in relation to credit.

A. 

It shall be an unlawful discriminatory practice for any creditor or any officer, agent or employee thereof:

(1) 

In the case of applications for credit with respect to the purchase, acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation, land or commercial space, to discriminate against such applicant because of the group identity of such applicant or applicants, or any member, stockholder, director, officer, or employee of such applicant or applicants, or of the prospective occupants or tenants of such housing accommodation, land or commercial space, or because of the lawful source of income of such individual or individuals, in the granting, withholding, extending, renewing, or in the fixing of the rates, terms or conditions of any such financial assistance or credit; or

[Amended 11-21-2023 by L.L. No. 35-2023]

(2) 

To use any form of application for credit or make any record or inquiry in connection with applications for financial assistance or credit which expresses, directly or indirectly, limitations, specifications, preferences, or discrimination because of the group identity or lawful source if income of the applicant or the applicants; or

[Amended 11-21-2023 by L.L. No. 35-2023]

(3) 

To discriminate in the granting, withholding, extending or renewing, or in the fixing of the rates, terms or conditions of any form of credit, on the basis of an applicant's or applicants' group identity or lawful source of income; or

[Amended 11-21-2023 by L.L. No. 35-2023]

(4) 

To refuse to consider sources of an applicant's income or to subject an applicant's income to discounting, in whole or in part, because of an applicant's group identity.