EEOC's New Affirmative Action Guidance Heightens Employer Risk for Reverse Discrimination Suits Post-SCOTUS Harvard Decision

Andrew Lieb Published in NYSBA Journal Stride from the Committee on Diversity, Equity, and Inclusion: EEOC's New Affirmative Action Guidance Heightens Employer Risk for Reverse Discrimination Suits Post-SCOTUS Harvard Decision.

https://liebatlaw.com/Material/publication/Stride_Fall%202024.pdf 

FTC “Click-to-Cancel” Rule - Mandatory Way to End Recurring Subscriptions and Memberships

On April 14, 2025 there will be no more of the never ending loop of frustration in trying to cancel your recurring subscriptions and memberships. The Federal Trade Commission ("FTC") has issued its finalized "Click to Cancel" rule, making it simpler for consumers to cancel recurring subscriptions. 

This rule targets those frustrating hurdles that consumers face to unsubscribe from services like streaming platforms and subscription boxes. In the past companies often required phone calls, long forms, or multiple steps for cancellations, even though signing up was easy with just a few clicks. This new rule ensures that if a business offers an online option to subscribe, they must also offer an easy online option to cancel in a similar manner. 

Businesses must now provide a clear, direct path for cancellation and requires companies to offer annual reminders of subscription renewals and to communicate any changes clearly to consumers. If a company proposes additional offers, alternatives, or incentives for consumers who are considering cancellation, the consumer must be able to decline those offers and proceed to cancel without additional hurdles. Check out the FTC's fact sheet here, which summarizes this new rule. 

This rule is the result of the thousands of complaints the FTC has received about recurring subscription practices each year. This rule will now provide a consistent legal framework by prohibiting companies from:

1. Misrepresenting any material fact made while marketing goods or services with a recurring subscription feature;
2. Failing to clearly and conspicuously disclose material terms prior to obtaining a consumer’s billing information in connection with a recurring subscription feature;
3. Failing to obtain a consumer’s express informed consent to the recurring subscription feature before charging the consumer; and
4. Failing to provide a simple mechanism to cancel the recurring subscription feature and immediately halt charges.

Violating the FTC’s new rule comes with a $51,744 civil penalty, injunctive relief, rescission or reformation of contracts that violate the Click-to-Cancel Rule, refund of money or return of property, the payment of damages, and public notification of the violation. Plus, there is additional exposure for state specific unfair or deceptive act or practice laws, such as NY General Business Law 349 for attorneys' fees and statutory penalties of $1,000 per violation. 

For more details, you can view the FTC's official release here. 

Brick-and-Mortar Businesses Without Accessibility Features on Websites Will Continue to Get Sued

A recent Federal Case highlights why businesses with physical locations must make sure that their websites are accessible to people with disabilities (e.g., screen readers).

Jose Mejia, who is legally blind, sued High Brew Coffee after their website prevented him from using his screen-reading software, making it impossible for him to complete his purchase. He claimed this was disability discrimination under Title III of the Americans with Disabilities Act (“ADA” or “Title III”), which prohibits discrimination on the basis of disability in places of public accommodation. (42 U.S.C. § 12182(a)).

Mejia claimed that accessibility issues with High Brew’s website constitute disability discrimination under Title III, as they prevented him from shopping as a sighted customer would. High Brew argued that because its website wasn’t tied to a physical location, it didn’t count. The Court sided with High Brew, ruling that websites without a physical counterpart aren’t subject to Title III in New York.

The opinion is a reminder that businesses with both websites and physical locations are still exposed to a discrimination case. This means that if your company operates a website tied to a physical store, you may face legal repercussions if it does not comply with accessibility standards. It's important to note that, while not available under Title III, emotional distress damages - that’s fancy lawyer talk for potential big bucks - are recoverable under the New York State Human Rights Law, Executive Law § 296(2)(a), and New York City Human Rights Law, New York City, N.Y., Code § 8-107(4) in these cases.

And for anyone like Mejia who has run into accessibility barriers on a website connected to a physical location, it’s worth contacting an attorney. You may have a case under the ADA & New York laws that protect against disability discrimination.

National Disability Employment Awareness Month - Are Your Accommodation Rights Being Violated?

On September 30, 2024, President Biden officially proclaimed October as National Disability Employment Awareness Month while promoting inclusive workplaces. 

This year's focus is advancing access and inclusion which aligns with the core principles of the Americans with Disabilities Act. The ADA eliminated the barriers individuals with disabilities faces, including employment. The ADA requires employers to provide reasonable accommodations and ensure that job opportunities are accessible to those with disabilities. This allows the over 61 million Americans living with a disability the opportunity to be included, participate, and be respected in the workforce.  

Remember, employers don't have a choice; if an accommodation is wrongfully denied, the employee can sue for back pay, front pay, emotional distress damages, punitive damages and attorneys' fees. 

If you'd like to read President Biden's proclamation, click here. 

National Guard Leave & Employment Protection in NYS Signed into Law

Effective on 9/27/2024, a new NYS law, A3710, extends employment protections to all active duty members of the national guard.

The law's justification explains the need for the law, as follows: "The Uniformed Services Employment and Reemployment Rights Act does not apply when a National Guard member is called up by the governor to serve state active duty to respond to state emergencies such as fires, hurricanes, tornadoes, and floods."

Under the law, service members are guaranteed re-employment in the same position or a position of similar prestige and pay, unless it is impossible or unreasonable for the employer to offer this.

Active duty national guard members called into service by NYS or another state must apply for re-employment within 90 days after being relieved from such service.

The law provides for compensation of lost wages and benefits if an employer breaches the law.