Standard of Practice 10-5 provides “REALTORS® must not use harassing speech, hate speech, epithets, or slurs…” The Standard of Practice is based on very particular types of speech that are directly connected to the protected classes of race, color, religion, sex, handicap, familial status, national origin, sexual orientation or gender identity under Article 10.
Definitions. The NAR refers to the dictionary for explaining the type of speech that could violate Article 10. “Hate speech” is defined in Merriam Webster’s Dictionary as speech that is intended to insult, offend or intimidate a person because of some trait (as race, religion, sexual orientation, national origin or disability). An epithet is defined as characterizing word or phrase accompanying or occurring in place of the name of a person or thing or a disparaging or abusive word or phrase.
Expanded Application. Previously, members could engage in conduct and speech that is discriminatory and abhorrent unless it could be tied to a real estate-related activity or transaction. The NAR Professional Standards Committee met on October 5, 2020, to consider recommendations from its Interpretations and Procedures Advisory Board on the Code of Ethics’ applicability to discriminatory speech and conduct. The Committee approved Policy Statement 29, which amended the Code of Ethics and Arbitration Manual, to expand applicability of the Code of Ethics to all of a REALTOR’s activities.
Rationale. The revised Standard of Practice directly flows from the requirement that agents not deny equal professional services or be parties to a plan to discriminate. The Committee concluded bias against protected classes revealed through the public posting of hate speech could result in REALTORS® not taking clients from certain protected classes or not treating them equally, which would lead to violations of the Fair Housing Act due to overt discrimination or disparate impact. As a result, violation of Article 10, as supported by Standard of Practice 10-5, can occur when a REALTOR® uses harassing speech, hate speech, epithets and slurs based on the protected classes in any media or context, regardless of whether related to their activities in the real estate business or their identification as a REALTOR®.
Putting the SOP to the test. The LGBTQ+ Real Estate Alliance recently requested the suspension from membership of a pastor and part-time real estate agent in Montana. A complaint was filed alleging that he violated the NAR Code of Ethics’ prohibition on engaging in “hate speech” against anyone because of their sexual orientation after the pastor withdrew his church from taking part in a free-lunch program after it celebrated gay rights and purportedly made statements about gays being an abomination and defilement of scripture. A preliminary review found a violation and required the agent to submit to an ethics hearing. However, the proceedings were suspended due to the agent’s filing a lawsuit against the NAR in which he claims the code of ethics should be invalidated because it’s too vague to be enforced and because it tramples on his religious beliefs. The suit alleges that his speech was not hateful under any reasonable definition of the term.
The Takeaway. Pending a determination, the Standard of Practice still applies and agents should govern themselves accordingly. Even if successful, the lawsuit would not necessarily lead to a revocation of the Standard but merely addresses its application in a very specific situation.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.