In November 2020, the Board of Directors of the National Association of Realtors® (“NAR”) adopted an update to Article 10 of the Realtor® Code of Ethics (“Code of Ethics”). This update provided a new Standard of Practice (SOP 10-5) that went into effect immediately and states:
REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.
When considering the new Standard of Practice in the context of Article 10, Realtors® asked questions. Does Article 10 apply only to actions and statements made by Realtors® in relation to their real estate practices? Or does Article 10 apply to any discriminatory action or statement made by Realtors®, regardless of it is in relation to their business practices? How does Article 10 apply to religious beliefs when stating those beliefs might constitute a violation of Article 10?
Beginning in January 2021, NVAR saw an increase in complaints alleging violations of Article 10. The allegations made in these complaints ranged from political comments made by a Realtor® to other Realtors® in their office, to language used by a Realtor® in the MLS to describe a feature of a home, to a Realtor® posting their attendance at a political event on social media. The NVAR Grievance Committee carefully reviewed these complaints to determine if the allegations constituted a possible violation of the Code of Ethics and required further review by a panel of NVAR’s Professional Standards Committee.
For a Grievance Committee to forward any of these complaints, the complainant must show that the respondent failed to provide equal professional services to, or were parties to a plan or agreement to discriminate against, any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. Article 10 also prohibits the same discrimination in the real estate employment practices of a Realtor®. Simply put, a complainant can allege behavior that could be deemed as unbecoming or inappropriate, but unless that behavior violates the Code of Ethics, a Realtor® Association does not have the authority to address such behavior and the Grievance Committee must dismiss the complaint.
On May 3, 2021, NAR’s Professional Standards Committee convened to discuss several topics, including measures to provide additional clarification regarding the scope of Article 10. A major step in this effort was the drafting and approval of four new Case Interpretations for Article 10. Case Interpretations are official NAR policy:
The Case Interpretation of the Code of Ethics approved by the National Association’s Professional Standards Committee and published in Interpretation of the Code of Ethics illustrate and explain the principles articulated in the Articles and Standards of Practice. While a Realtor® cannot be found in violation of a Standards of Practice or a Case Interpretation, both are official statements of National Association policy and are not merely advisory. Both can be cited by complainants in support of alleged violations of Articles and by hearing panels in support of decisions that an Article(s) has been violated.
While decisions made by hearing panels do not establish precedent, it is still important to have relative consistency in the decisions being made by hearing panels across the country. Case Interpretations, as well as Sanctioning Guidelines and other established parameters, support such consistency.
The new Case Interpretations are summarized below:
#10-6 - A violation of Article 10 may be found when a panel determines that a respondent used hate speech, slurs, etc. A complainant is not required to prove that a Realtor® failed to provide equal professional services based upon a person belonging to a class protected by Article 10.
#10-7 - A complaint based solely upon a respondent’s alleged discrimination against a specific political party does not constitute a violation of Article 10 as political affiliation is not a protected class.
#10-8 - A violation of Article 10 may be found when a panel determines that a respondent used harassing speech against a protected class even if the comments were not directed only towards members of that protected class.
#10-9 - A violation of Article 10 may be found when a panel determines that a respondent used harassing speech, hate speech, etc., based upon reasons of a protected class, even when the speech is determined upon the respondent’s interpretation of religious texts or teachings.
Case Interpretation #10-9 was discussed at length by the committee. Some committee members expressed concerns that this interpretation could lead to respondent’s being penalized for their religious beliefs. The committee was informed that an additional Case Interpretation was being drafted to provide further guidance to hearing panels tasked with distinguishing between prohibited discrimination and protected religious beliefs. One major point was emphasized during this discussion: Statements regarding religious beliefs will not be an automatic defense against a hearing panel finding a violation for these types of allegations.
Of the 100 members serving on NAR’s Professional Standards Committee, NVAR has two representatives: 2021 President-Elect, Reggie Copeland, and NVAR Associate Director of Professional Services, Stevie Fisher. NVAR is proud of our ability to influence policy on the national level. It is important for NVAR members to provide feedback to their Association as we work together to provide clear guidance for ethical behavior in real estate practice, whether it relates to Article 10 or any Article of the Code. Conversations about these important issues will continue at the local, state, and national levels but the overall message is loud and clear: Realtors® are taking a stand against discrimination.