HUD Rescinded Fair Housing Regs, BUT There is a Lot More There Than it Seems

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

Well, HUD seems to think so too.

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

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

The Affirmative Fair Housing Marketing regulations are not about preventing discrimination; rather, they require applicants to affirmatively attract minority persons and to do so through “minority publications or other minority outlets.” 24 CFR 200.620. Far from supporting the race-neutral and purely prohibitory requirements of the Act, the AFHM regulations require private parties to sort individuals by race and engage in outreach based on race. 

 

In fact, the proposed rule clearly takes issue with this approach in reminding the public that the Fair Housing Act is "aimed at discrimination against persons because of race, not informational disparities." 

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

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

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

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

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

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

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

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

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

So, what does this mean for you? 

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

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

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

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

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

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

It shall be an unlawful discriminatory practice for any person to discriminate against any individual in making real estate appraisal services available or to base a real estate appraisal, estimate, or opinion of value on the race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, status as a victim of domestic violence, lawful source of income, or familial status of either the prospective owners or occupants of the real property, the present owners or occupants of the real property, or the present owners or occupants of the real properties in the vicinity of the property. Nothing in this section shall prohibit a real estate appraiser from taking into consideration factors other than race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, status as a victim of domestic violence, lawful source of income, or familial status.

Note that an appraisal can't be impacted by "citizenship or immigration status" of those in the vicinity of the property.

Wondering what Trump thinks about that.

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

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

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

3 Takeaways from the EO:

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

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

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

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

Trump Clarification on Gender Dysphoria (Gender Identity) Creates Confusion

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

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

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

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

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

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

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

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

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

📅 Wednesday, April 16, 2025

🕧 12:30 p.m. – 1:45 p.m. ET

📍 Webinar

📚 1.5 MCLE Credits

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

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

Register Here

NAR: Clear Cooperation Stays But With a New Loophole

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

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

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

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

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

Corporate Beneficial Ownership Reporting Changes: Who’s In, Who’s Out, and What You Need to Know

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.

The big change is that domestic reporting companies and their beneficial owners are now exempt from filing initial, updated, or corrected BOI reports. This means that these companies no longer have to comply with the CTA’s reporting requirements. Domestic companies, whether corporations, LLCs, or other entities formed by filing with a state or tribal office, are no longer considered "reporting companies" under the Reporting Rule.

For foreign reporting companies, the new rule brings a couple of important exemptions:

• Foreign companies are not required to report the BOI of U.S. persons who are beneficial owners.
• Similarly, U.S. persons are not required to provide their BOI to foreign reporting companies.

In other words, foreign companies with only U.S. person beneficial owners are entirely exempt from BOI reporting. If a foreign company has individuals with substantial control who are non-U.S. persons, those non-U.S. persons must be reported, but U.S. persons with substantial control do not need to be included.

For foreign reporting companies, the filing deadline has been extended. They now have until 30 days after the publication of this rule, which was March 26, 2025, extending the deadline to April 25, 2025, or 30 days after their registration to do business in the U.S., whichever comes later, to submit their BOI reports.

Exemption Summary: 

• Domestic reporting companies and their beneficial owners: Exempt from all BOI reporting.
• Foreign reporting companies: Not required to report BOI of U.S. persons.
• Foreign companies with only U.S. person beneficial owners: Entirely exempt from BOI reporting.
• Foreign pooled investment vehicles: Exempt from reporting BOI of U.S. persons with substantial control.

FinCEN is also inviting comments from the public and plans to issue a final rule later this year. If you’d like to read the full rule or submit comments on the rule, click here. 

What do you think about this temporary exemption? Let us know in the comments!

NAR's Delayed Marketing Exempt Listings Rule & Office Exclusive Exempt Listing - Anticompetitive Practices?

Did MLS just engage in anticompetitive practices as to online listing platform companies, like Zillow, Realtor.com, Homes.com, Redfin, and Trulia, by permitting sellers to elect off of public marketing through an Internet Data Exchange (IDX) while simultaneously requiring sellers (without any election option) to have their listings shared between MLS participants and subscribers? 

Previously, and since 2020, the MLS Clear Cooperation Policy had required brokers to submit listings to MLS, within one (1) business day of publicly marketing the listing, and all listings were immediately available on the IDX. This policy is no more.

Now, and at least as of September 30, 2025, NAR has established the Delayed Marketing Exempt Listings Rule where all listings will be required to be available through the MLS to all participants and subscribers, but not by IDX if the seller signs a disclosure agreement (also, the seller disclosure prevents brokers from engaging in syndication).  

This IDX / MLS dichotomy results in giving the MLS (and its participants and subscribers) a clear advantage over other online platforms (and non-NAR / MLS real estate licensees) where the result likely will steer consumers towards working with real estate licensees affiliated with NAR, to the detriment of non-NAR / MLS real estate licensees, because that is who will have the most up-to-date information.

It is acknowledged that MLS does also permit consumers to elect to have an Office Exclusive Exempt Listing, which permits a seller to have their property only marketed with their brokerage for a set period of time. However, unlike the Delayed Exempt Listings Rules, any act of public marketing on the Office Exclusive Exempt Listing, such as putting up a sale sign on the property, ends the Office Exclusive Exempt Listing resulting in immediate sharing throughout the MLS with participants and subscribers, but not necessarily on the IDX. 

Is it time for Sitzer 2.0? 

 

Reverse Discrimination - DEI Discrimination at Work per EEOC

 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.

Lieb at Law is Hiring: AI-Driven Litigation Law Clerk (1L and 2L)

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

New CLE from Andrew Lieb: Reverse Discrimination: McDonnell Douglas in Trump's America

Andrew Lieb's 1 credit CLE is now available on Lawline. This continuing legal education course examines how courts handle reverse discrimination claims using the McDonnell Douglas framework. With Affirmative Action over per SCOTUS in SFFA v. Harvard, minority status can no longer be a plus factor in hiring. Yet, the EEOC’s outdated Affirmative Action Guidance puts employers at risk of lawsuits. Victims of illegal DEI policies need to know how to sue and recover for their employer’s discriminatory actions. Available for credit in most states.

Click Here For Course Link

EEOC Targets Reverse Discrimination for Anti-American Bias - International Staffing Agencies Be Warned!

On 2/19/2025, EEOC Announced a Crackdown on Anti-American Bias with a target of those engaging in unlawful national origin discrimination, including employers and staffing agencies. By emphasizing staffing agencies in its Press Release, it appears that EEOC is targeting staffing agency that focus on foreign workers and they should lawyer-up immediately. 

What You Need to Know

The U.S. Equal Employment Opportunity Commission (EEOC) has announced a renewed focus on combating national origin discrimination, with a particular emphasis on protecting American workers from unlawful hiring preferences that favor non-American employees. Acting Chair Andrea Lucas made it clear that the agency will be increasing enforcement efforts against employers, staffing agencies, and other entities that engage in illegal hiring practices that disadvantage American workers. Read the full EEOC press release here.

Summary of the EEOC’s Announcement

The EEOC is intensifying enforcement against employers that unlawfully prefer non-American workers over American workers, citing violations of Title VII of the Civil Rights Act. The agency aims to deter illegal migration and curb the abuse of legal immigration programs by holding employers accountable for discriminatory hiring practices.

What Employers Need to Know

Employers should immediately review their hiring, recruitment, and staffing policies to ensure compliance with Title VII’s prohibition on national origin discrimination. Common illegal practices include:

• Preferring non-American workers over American workers due to perceived cost savings or ease of exploitation.
• Hiring practices that intentionally exclude U.S. citizens or lawful permanent residents in favor of visa holders.
• Making employment decisions based on biased stereotypes about work ethic, productivity, or compliance.
• Complying with client demands for a foreign workforce over qualified American workers.

The EEOC has made it clear that these discriminatory practices will not be tolerated, and businesses found to be in violation may face significant legal and financial penalties.

What Employees Need to Know

Employees, whether American or non-American, are protected under federal law from national origin discrimination. If you suspect that an employer is favoring foreign workers over qualified American workers—or engaging in any other form of national origin discrimination—you have the right to file a complaint with the EEOC within 300 days (in NY, but may be 180 days elsewhere) of the discriminatory action. Employees are protected from retaliation for reporting discrimination, and the EEOC can investigate claims and, if necessary, give you a right to sue letter so you can sue in Federal Court to recover lost wages, emotional support damages, and your attorneys' fees.

Non-competes & Non-disclosures Usefulness Enhanced by National Labor Relations Board's Rescissions of Guidance

On February 14, 2025, the National Labor Relations Board (NLRB) rescinded enforcement memorandums that had made companies exposed to suit for utilizing certain non-competes and non-disclosures. In fact, the memorandums provided guidance on how employees could demonstrate harm and how employers were exposed from utilizing such non-competes and non-disclosures for lost wages, benefits, and other expenses incurred by the employee. 

Specifically, the NLRB rescinded: 

1. GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act
2. GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act
3. GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision

The core argument is that non-compete provisions and stay-or-pay provisions (i.e., nullifying debt incurred by employee only if they stay in employment for a period of time) can restrict employees' rights to engage in protected concerted activities, such as organizing or advocating for better working conditions. Further, The McLaren Macomb ruling determined that broad confidentiality and non-disparagement clauses in severance agreements could violate employees' rights under Section 7 of the NLRA.

AI Discrimination and the 10-Step Bias Elimination Audit

AI's rapid growth comes with significant risks, particularly the potential for unchecked discrimination. As a result, new laws may soon require mandatory audits and enhanced training to ensure compliance and fairness.

In this New York Law Journal article, attorneys Andrew Lieb and Claudia Cannam outline the essential steps for conducting a proper AI audit—helping businesses stay ahead of evolving regulations and mitigate legal risks.

🔗 Read more here

SCOTUS Makes It Harder for Workers to Recover Wages

On January 15, 2025, the U.S. Supreme Court ruled in E.M.D. Sales, Inc. v. Carrera that employers only need to prove that employees are exempt under the provisions of the Fair Labor Standards Act ("FLSA") by a "preponderance of the evidence" (more likely than not) to defeat a wage and hour claim. This decision replaces the tougher "clear and convincing" standard that had been applied by some courts prior to this decision.

The FLSA requires an employer to pay overtime to employees unless the employer can prove that the employees fall under an exemption, such as being an Executive, Administrative, Professional, Computer & Outside Sales Employees.

In the case before SCOTUS, the employees claimed that they were misclassified as outside salesmen and sued their employer for overtime pay, liquidated damages (double damages), and attorneys' fees. 

The lower court sided with the employees, in using the tougher "clear and convincing" standard, but the employer appealed while arguing that it only had to prove that the exemption applied by a preponderance of the evidence. SCOTUS agreed with the employer and sent the case back to the lower court to reexamine the facts to determine the applicability of the exemption under the preponderance of the evidence standard. 

Regardless, the message is clear: Employers now have a lower hurdle when defending a wage and hour case in proving that an exemption applies to a wage and hour claim under the FLSA. 

Trump's Executive Order Will Cause Lots of Discrimination Lawsuits

Trump's Executive Order 14168 is set to cause a lot of discrimination lawsuits. 

On the one hand, the EO is a playbook for reverse discrimination and hostile environment claims by women because the EO claims that women have been victimized by transgender individuals claiming inclusion in womanhood. The EO states that "men [] self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women's domestic abuse shelters to women's workplace showers. This is wrong." As such, biological women who are subjected to transgender individuals in single-sex spaces can now argue that the space provider created a hostile environment by such inclusion and any woman who was denied access or was otherwise sexually harassed by a transgender individual in such a space has a very good claim under federal law.   

On the other hand, the EO expressly states that SCOTUS's decision on workplace discriminations' protection for "Sex," where it defined the protected class of "Sex" to also include protections for "Sexual Orientation" and "Gender Identity" would be untenable for education discrimination. Specifically, the EO states that "The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent." However, the distinction is meaningless between workplace and school environment; discrimination is discrimination wherever it occurs. That is to say, if Trump's administration believes "Sex" protections should not include protections for "Sexual Orientation" and "Gender Identity" at school, they should equally not include those protections at work. This distinction between Title VII and Title IX is just stupid. 

Regardless, the EO is also going to cause lawsuits from intersex individuals because it is facially flawed in stating that "[i]t is the policy of the United States to recognize two sexes, male and female." Turns out that is biologically false without even discussing a distinction between gender and sex. Specifically, some people are born with biological characteristics of both females and males and this EO specifically targets them while discriminating against their personhood.

Buckle-up - Trump is about to usher in the era of discrimination lawsuits.

AirBnB / VRBO Hosts are Going to be Taxed in NYS Starting April 20, 2025

Starting April 20, 2025, short-term rental hosts across NYS will be in for a rude awakening by way of A4130C. This law creates a statewide short-term rental registration requirement for owners, which is designed to facilitate the State in collecting occupancy taxes while tracking the hosts. 

To be clear, NYS is now treating short-term rentals like hotel rooms under the Tax Law - this is certainly going to cut into profits for hosts &/or make renting an AirBnB / VRBO more expensive for guests. 

For hosts, this means much more paperwork, stricter rules, and some hefty penalties for noncompliance. Specifically, the Department of State will give you 2 warnings & then, start levying the fines at hundreds of dollars per day, per violation. 

New York is not alone in its quest to regulate short-term rentals. Cities like San Francisco, Boston, and Los Angeles have already implemented similar measures. However, New York’s approach stands out for its focus on statewide coordination, which could become a model for other states grappling with the complexities of regulating the short-term rental industry.

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NYC Provides Protections for Individuals with Criminal Histories from Discrimination

NYC has clarified that it is illegal to discriminate in housing against applicants / occupants with criminal histories by way of Local Law 24, also known as the Fair Chance in Housing Act 2025, effective January 1, 2025. 

That said, it was already impliedly the law everywhere throughout the US as we previously explained here. 

Regardless, the new NYC law explicitly prohibits property owners, managers, & brokers from:

• Refusing to rent, sell, and/or lease housing accommodations based solely on criminal history, except under specific circumstances outlined in the law.
• Performing criminal background checks outside the law's defined parameters, including searching records and/or asking applicants about their criminal history without proper notice & justification.
• Using criminal history to set terms or conditions that disadvantage individuals with such backgrounds.

Into the weeds, there is nuance in the NYC Local Law because it differentiates between “reviewable” and “non-reviewable” criminal history where sealed convictions, youthful offender adjudications, and certain federal or out-of-state offenses cannot be used to deny housing, but convictions for serious offenses (e.g., recent felony convictions) may be reviewed through a detailed and exposure riddled process, including providing notice and conducting an individualized assessment. The process requires: 

• Making a conditional offer to the applicant.
• Notifying the applicant in writing of any intended criminal background check.
• Allowing the applicant to provide mitigating information if adverse action is contemplated.

Plus, a landlord must demonstrate a legitimate business interest tied to the decision if they'd like to deny on criminal history. 

That all said, the main takeaway is that housing applicants / occupants with criminal histories are going to be filing housing discrimination complaints starting in 2025. If you are a property owner, manager, or real estate broker, expect to get served by the NYC Commission on Human Rights if you plan to make any housing decisions based on an applicant's / occupant's criminal history. Plus, there are big numbers that you can lose including the "victim's" attorneys' fees if they sue you with a private attorney. Take this very seriously & immediately stop screening based on criminal history today. 

New NYS Law Lets Models Sue Agencies for Abuse

Effective June 19, 2025, the New York State Fashion Workers Act, A05631E, will protect New York's 180,000 fashion industry professionals--models, influencers, photographers, and stylists--from their management company's exploitation through unfair pay, sexual abuse, harassment, and discrimination.

Now, victims can bring a new lawsuit for experiencing unsafe working conditions, exploitative contracts, delayed payments, and abuse where they can collect liquidated damages (double to three times damages) and attorneys' fees. 

The Act Requires:

• A zero tolerance policy for abuse, harassment, or other forms of inappropriate behavior
• Models to receive copies of the final agreement that has been negotiated 
• Overtime payments of at least 50% higher than contracted hourly rate for work exceeding 8 hours in a 24 hour period 
• Meal breaks for jobs over 8 hours
• Liability insurance for models’ health and safety
• Management agencies commission is capped 20%
• Management agencies must utilize transparent contracts & provide copies to models
• Clear consent for the use of digital replicas
• Modeling agencies to register with the State of New York to operate

Prohibited practices that could lead to a lawsuit under the Act (plus related laws) include:

• Discrimination / harassing models on the based of sex, orientation, race, color ethnicity, national origin, disability and other categories  
• Retaliatory action against models for filing complaints
• Making power of attorney a necessary condition for entering into a contract with an agency
• Collecting signing fees or deposits from models
• Deducting fees other than agreed upon commission from models' earnings
• Renewing contracts without models' consent
• Creating, altering, or manipulating a model's digital replica using AI without models' clear written consent.

These new lawsuits are designed to close a loophole that modeling agencies have utilized to escape licensing & regulation by considering themselves management companies, rather than talent agencies, under New York State General Business Law § 171(8), known as the "incidental booking exception." 

New Mortgage Applicant Pamphlet Requirement on Residential Purchases

Starting on June 11, 2025, NY residential real estate purchasers will receive a new pamphlet, called "What Mortgage Applicants Need to Know," pursuant to A9686.

This pamphlet is going to be created by the NYS Department of Financial Services and it will be available on the Department's Website - https://www.dfs.ny.gov/ where lenders have an affirmative duty to provide the form and put it on their website, as described in the law.

The pamphlet will equip all mortgage applicants, and especially non-English speaking homebuyers, with information on interest rates and market comparisons before they engage with lenders and bankers. Lenders and bankers are also required to provide buyers with the pamphlet. 

Loan officers (LO) beware - this pamphlet directs consumers to file a complaint with CFPB if such consumer believes that such LO violated the law. 

Real Estate Brokers beware - this pamphlet directs consumers to file a complaint with DOS if such consumer believes that such broker violated the law "in working with you to purchase a home," which is without limitation to lending. 

In fact, the pamphlet, developed by the Department of Financial Services, must include the following minimum requirements:

"'WHAT MORTGAGE APPLICANTS NEED TO KNOW'
   AS AN APPLICANT FOR A RESIDENTIAL MORTGAGE YOU HAVE THE RIGHT TO:
   1. COMPARE AND NEGOTIATE THE CHARGES OF DIFFERENT MORTGAGE BROKERS AND
 LENDERS TO OBTAIN THE BEST LOAN POSSIBLE.
   2.  ASK YOUR MORTGAGE BROKER TO EXPLAIN SUCH PERSON'S RESPONSIBILITIES
 WITHIN THE MORTGAGE LENDING PROCESS.
   3. KNOW HOW MUCH THE MORTGAGE BROKER IS COMPENSATED  BY  YOU  AND  THE
 LENDER FOR YOUR LOAN.

 4. A CLEAR AND TRUTHFUL EXPLANATION OF THE TERMS AND CONDITIONS OF THE
 LOAN.
   5.  KNOW IF THE LOAN BEING OFFERED IS A FIXED OR ADJUSTABLE RATE MORT-
 GAGE LOAN, WHETHER THE LOAN CAN BE TRANSFERRED OR REFINANCED,  KNOW  THE
 EXACT  AMOUNT  OF  YOUR  MONTHLY  LOAN PAYMENTS, INCLUDING ANY PROJECTED
 ESCROW PAYMENTS, KNOW THE FINAL ANNUAL PERCENTAGE  RATE  (APR)  AND  THE
 AMOUNT OF REGULAR PAYMENTS AT THE LOAN'S CLOSING.
   6.  ASK  FOR  LOAN  ESTIMATE DETAILING ALL LOAN AND SETTLEMENT CHARGES
 BEFORE YOU AGREE TO THE LOAN AND PAY ANY FEES, INCLUDING WITHOUT LIMITA-
 TION LOAN APPLICATION FEES, TITLE SEARCH AND  INSURANCE  FEES,  LENDER'S
 ATTORNEY  FEES, PROPERTY APPRAISAL CHARGES, INSPECTIONS, RECORDING FEES,
 LATE PAYMENT FEES, TRANSFER TAXES, POINT AND  ORIGINATION  FEES,  ESCROW
 ACCOUNT BALANCES, WHICH SERVICES A LOAN APPLICANT CAN SHOP FOR AND WHICH
 THEY  CANNOT, AND YOU ARE ENTITLED TO RECEIVE SUCH ESTIMATE WITHIN THREE
 BUSINESS DAYS OF APPLYING FOR A LOAN.
   7. OBTAIN CREDIT COUNSELING BEFORE CLOSING A LOAN.
   8. DECIDE WHETHER OR NOT TO FINANCE ANY PORTION OF THE POINTS OR FEES.
   9. REFUSE TO PURCHASE CREDIT INSURANCE FOR ANY MORTGAGE LOAN.
   10. HAVE YOUR PROPERTY APPRAISED BY AN  INDEPENDENT  LICENSED  PROFES-
 SIONAL AND TO RECEIVE A COPY OF THE APPRAISAL.
   11. NOT BE SUBJECT TO DECEPTIVE MARKETING PRACTICES.
   12.  ASK  FOR THE CONSUMER FINANCIAL PROTECTION BUREAU'S BOOKLET "YOUR
 HOME LOAN TOOLKIT".
   13. RECEIVE THE FOLLOWING  DOCUMENTS,  AND  EVERY  DOCUMENT  OTHERWISE
 REQUIRED  TO BE GIVEN TO YOU AT CLOSING UNDER FEDERAL AND NEW YORK STATE
 LAW:
   A. LOAN ESTIMATE,
   B. CLOSING DISCLOSURE.
   14. KNOW WHAT DEPOSITS AND FEES ARE NOT REFUNDABLE IF  YOU  DECIDE  TO
 CANCEL THE LOAN AGREEMENT.
   15.  RECEIVE  IN  WRITING  THE  REASON  FOR  THE DENIAL OR CONDITIONAL
 APPROVAL OF YOUR LOAN APPLICATION.
   16. IF REFINANCING, YOU MAY CANCEL A LOAN WITHIN  THREE  DAYS  OF  THE
 CLOSING  BY  PROVIDING  WRITTEN  NOTIFICATION  OF  CANCELLATION  TO  THE
 LICENSED LENDER OR BANKING INSTITUTION.
   17. RECEIVE THE CLOSING DISCLOSURE THREE DAYS BEFORE THE CLOSING TAKES
 PLACE.
   18. HAVE ANY LENDING DISPUTES RESOLVED IN A FAIR AND EQUITABLE MANNER.
   19. A CREDIT DECISION  THAT  IS  NOT  BASED  UPON  YOUR  RACE,  COLOR,
 NATIONAL ORIGIN, RELIGION, SEX, FAMILY STATUS, SEXUAL ORIENTATION, DISA-
 BILITY OR WHETHER ANY INCOME IS FROM PUBLIC ASSISTANCE.
   20.  FILE  A  COMPLAINT  WITH THE DEP
ARTMENT OR THE CONSUMER FINANCIAL
 PROTECTION BUREAU IF YOU BELIEVE THAT A MORTGAGE  BROKER  OR  ANY  OTHER
 ENTITY  LICENSED  BY THE DEPARTMENT OR THE CONSUMER FINANCIAL PROTECTION
 BUREAU HAS VIOLATED ANY RULES, REGULATIONS OR  LAWS  WHICH  GOVERN  SUCH
 PERSON'S CONDUCT IN WORKING WITH YOU TO GET OR PROCESS A MORTGAGE LOAN.
   21.  FILE  A  COMPLAINT WITH THE NEW YORK STATE DEPARTMENT OF STATE OR
 THE CONSUMER FINANCIAL PROTECTION BUREAU IF  YOU  BELIEVE  THAT  A  REAL
 ESTATE  BROKER  HAS VIOLATED ANY RULES, REGULATIONS OR LAWS WHICH GOVERN
 SUCH PERSON'S CONDUCT IN WORKING WITH YOU TO PURCHASE A HOME."

Do Employment Discrimination Victims Need to File for Workers' Compensation to Win Big Emotional Distress Damages?

Victims of employment discrimination in New York will be well pressed to file for Workers' Compensation concerning any related emotional distress starting on January 1, 2025 or they will be very limited in recovering emotional distress damages as part of their discrimination claim.

Specifically, Workers' Compensation Law 10(3)(b) has been amended, by A5745, to permit all "worker[s to] file[] claim[s] for mental injury premised upon extraordinary work-related stress incurred at work."

Previously, the availability of Workers' Compensation for "mental injury premised upon extraordinary work-related stress" only applied to emergency service workers (police, firefighter, emergency medical technician, paramedic, & emergency dispatcher), but now it applies across the board to all workers. Moreover, Worker's Compensation for such mental injuries was previously limited to "work-related emergency" and now it just must occur "at work." This amended law is very broad and clearly applies to all workers for work related post-traumatic stress disorder (PTSD).

That all said, a worker seeking to obtain Workers' Compensation benefits for such mental injuries still has the burden of demonstrating a causal relationship supported by a rational basis between his work and his documented PTSD diagnosis. To prove this connection, a worker should hire both Workers' Compensation counsel and Employment Discrimination counsel as the two claims are now wholly interrelated and a failure of one will hurt the other and vice-versa. 

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Avoiding Discrimination in AI: CLE from Lieb at Law's Claudia Cannam

As artificial intelligence continues to transform industries, it also presents unique legal challenges, particularly in avoiding discriminatory practices embedded in AI systems. To help attorneys navigate these complexities, Lieb at Law Associate Claudia Cannam recently taught a 1-credit CLE course through Quimbee, titled “Avoiding Discrimination in AI.”

Avoiding Discrimination in AI: In order to navigate some of the legal challenges that come with new tech, you must understand the hidden biases in artificial intelligence systems and their legal impact. This course will dive into how AI discrimination occurs and its real-world consequences. We will review practical advice and strategies for avoiding discrimination when using AI.

Register Now: Attorneys can register for Claudia Cannam's Avoiding Discrimination in AI CLE course here.

Ted Cruz Protects Women - the Take It Down Act Passes Senate

Sponsored by Ted Cruz, the Take It Down Act (S4569) has passed the Senate and heads to the House so that a newly inaugurated President Trump can protect women from online sexual harassment, including revenge porn. 

Is Trump 2.0 going to be the protector of women? He did say that he is the protector of women “whether the women like it or not," maybe foreshadowing signing this bill? 

Anyway, to the law, it modifies the criminal prohibition on intentional disclosure of nonconsensual intimate visual depictions (47 USC 223) by inserting a new subsection (g). This new section includes penalties of up to 2 years in prison (3 if it involves a minor). Under the law, it's now (if signed by Trump) unlawful to use an interactive computer service to knowingly publish an intimate visual depiction of an identifiable individual where their was a reasonable expectation of privacy, amongst other crimes. Plus, there is a restitution section where victims can receive compensation for their pain, including for psychological care, lost income, and attorneys’ fees, plus any costs incurred in obtaining a civil protection order. 

To be clear, the law is not sex / gender specific and in fact, there is a section about utilizing a digital forgery of a person without consent, regardless if it it contains intimate depiction.