Dear Shannon: I was in a professional standards education session recently and the discussion was about Standard of Practice (SOP) 10-5. Someone in the group (I think it was an attorney) suggested there was a higher standard of evidence needed in a hate speech hearing. The attorney indicated that while the hate speech might trigger a complaint, a violation of Article 10 requires clear evidence of an actual denial of equal professional services to individuals in a protected class. The implication was that if the accused Realtor® could show they had clients/customers who were members of such protected class, this could be a defense. It sounded like the attorney was suggesting that if I have a client/customer who is a member of a protected class, it’s somehow okay to participate in protected class hate speech. This sounds wrong to me.
I’m proud of being a Realtor and holding myself to a higher standard of professionalism. The notion that I could participate in protected class hate speech and turn around and look someone in the eye who is a member of that protected class and have the audacity to claim to be able to provide them with equal professional services is shameful to me. And then, when an ethics complaint is filed, the suggestion that I would be able to get away with it as long as I had a client/customer who is a member of that protected class . . .it’s disgraceful.
Please tell me that this attorney was wrong. I simply cannot believe such behavior is not actionable under Article 10 without additional proof of the denial of equal professional services. I thought the hate speech and racial slurs are themselves the violation. And besides, it’s also a bad look for our profession. I’m thinking that hate speech and racial slurs, at a minimum, give the perception of discrimination. Please clarify in your next article because I want to help Elevate our Profession.
Dear Elevate our Profession: Thank you for being willing to tackle complex, nuanced questions about our profession, protected class hate speech, professional standards hearing panel standards of proof and possible risk. You are correct, the protected class hate speech itself can be the violation of Article 10 without additional proof of denial of equal professional services to members of a protected class. Let’s unpack these complicated topics. We’ll look to SOP 10-5 and Case Interpretation #10-6 as guides to help make sense of the intent and interpretation of Article 10. First let’s look at Article 10.
Under Duties to the Public, Article 10 states:REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity. (Amended 1/23)
REALTORS®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity. (Amended 1/23)
Article 10 focuses on a Realtor’s obligation to provide equal professional services to people who are members of a list of protected classes. So, how do we know exactly what ethical obligations are imposed by Article 10? We can look to the Standards of Practice (SOPs) under the Article. Standards of Practice serve to clarify the ethical obligations imposed by various Articles. Standard of Practice 10-5 states: REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity. (Adopted and effective November 13, 2020, Amended 1/23)
Even though a Realtor cannot be held in violation of a Standard of Practice, the Standard of Practice helps clarify the interpretation of the Article. So, when a hearing panel determines if a Realtor has violated Article 10, they can look to SOP 10-5. SOP 10-5 makes it clear that Realtors are prohibited from using hate speech and racial slurs.
How else might we find out what ethical obligations are imposed by Article 10? We can look to relevant Case Interpretations. Interpretations of the Code of Ethics have been developed by the Professional Standards Committee of the National Association of Realtors® to help Realtors understand the ethical obligations created by the Code of Ethics.
Relevant to your scenario, Case Interpretation #10-6: Use of Hate Speech and Slurs on the Basis of Race says in relevant part: In social media discussions, a REALTOR® made hateful comments and racial slurs about members of a protected class. A consumer filed an ethics complaint alleging a violation of Article 10, as interpreted by SOP 10-5. At the professional standards hearing, the REALTOR® confirmed they had, in fact, posted the statements, but denied that making the statements interfered in their ability to provide equal professional services to anyone because of their race. The Hearing Panel considered the intended application of Article 10, as interpreted by Standard of Practice 10-5, as noted in Appendix XII to Part Four of the Code of Ethics and Arbitration Manual. The Panel concluded that the comments the REALTOR® posted constituted the use of hate speech and slurs. In their decision, the Panel clarified that this public posting of hate speech and disparagement of individuals based on their race reflected discrimination. REALTOR’s defense was not accepted by the Hearing Panel, and the REALTOR® was found in violation of Article 10. (paraphrased for brevity)
Notice in this Case Interpretation, the hearing panel simply did not accept the Realtor’s defense that making such statements did not interfere with their ability to provide equal professional services to anyone because of a protected class characteristic. You thought that hate speech and racial slurs, at a minimum, give the perception of discrimination. Case Interpretation 10-6 states; “ . . . [the] public posting of hate speech and disparagement of individuals based on their race reflected discrimination.” This Case Interpretation makes clear that protected class hate speech and racial slurs reflect discrimination and is a violation of Article 10 as interpreted by SOP 10-5. There was no discussion of a need to find additional evidence or proof of actual denial of equal professional services a member of a protected class. The hate speech and racial slurs themselves were enough for a violation.
In joining an NAR-affiliated association, Realtors signify their intention to abide by the Code and thereby enhance the public and professional image of themselves and all other Realtors. Adherence to the Code is the first great bond between Realtors throughout the country. Thank you for sharing your experience and continuing to elevate this profession.
Other laws and rules apply.
Shannon Allen is an attorney and Florida Realtors Director of Local Association Services
Note: Advice deemed accurate on date of publication.
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