ORLANDO, Fla. – The board of the National Association of Realtors® (NAR) approved a new Code of Ethics (COE) policy on Nov. 13 that immediately went into effect. The policy sparked a spirited discussion among NAR committees and the board itself, and that discussion continues among members.

A key point of contention over the new policy focuses on a Realtor’s private life outside his or her job, such as content they might post on a personal, rather than business, social media page.

Under the new Standard of Practice 10-5: “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.” Failure to follow this Standard of Practice could lead to a charge under Article 10 of the Code of Ethics.

In general, NAR representatives said the context of seemingly incorrect language is as important as the content itself.

Questions and answers from the webinar

Misgendering: What if someone appears to be one gender but prefers a pronoun like “they” or the opposite of what they appear? Is it now a COE violation?

Matt Difanis, chair of NAR’s Professional Standards Committee, said it’s not enough for speech to reference a protected class, such as gender identity or sexual orientation, according to Andrea V. Brambila writing in Inman News. It depends on context – though Difanis added that he can’t give specific advice in advance. “The circumstances and the context matter, but I simply want to reiterate that this solution is narrowly aimed at discriminatory hate speech, epithets and slurs and is not intended to go after anyone on the basis of political, religious or policy beliefs.”

He gave an example of context that might make a difference in a Code of Ethics allegation: Realtor A may know that Person X prefers to be referred to as “they” but accidentally slips up a few times. However, Realtor B could be using constant slip-ups as a weapon and “intentionally, repeatedly and maliciously” keep using the non-preferred pronoun.

While there’s no guarantee that either Realtor A or B is impacted by the new Code of Ethics rule, the context is different even if the misuse is the same.

Same-sex marriage: What if a Realtor’s religious beliefs oppose same-sex marriage? If they say that privately, could they face an ethics violation?

“No,” Difanis said. “It’s the difference between a personal religious, political or policy belief – this does not regulate or sanction anything that you believe or think – it’s the difference between that versus weaponizing it.”

Difanis used the same-sex marriage question to say that the new COE rule focuses on “weaponized speech,” according to Brambila. Saying your religion disagrees with same-sex marriages isn’t weaponized; saying “Gays and lesbians are guilty of murder, according to the Scriptures,” might be.

Limiting the COE to protected classes: Everyone is part of a protected class and sometimes more than one protected class, Difanis said. It also bans hate speech against whites and Christians, for example.

While certain races and religions have historically borne the brunt of hate speech, Difanis said the new COE policy benefits everyone.

Rule overreach: Some Realtors worried about the ramifications of the rule – that if they weren’t “politically correct” 100% of the time privately, it would become an overbearing tool that used a Code of Ethics hearing to silence them. Some brokers wondered if they had to monitor everything posted by every agent.

A complainant has to present “clear, strong and convincing proof in front of a hearing panel” to prove a violation, Difanis said, the “hundreds of pages of due process protections that protect every one of (NAR’s) 1.4 million members.”

Timing of enforcement: The rule went into effect on Nov. 13, but what about earlier posts that might still exist? A grievance committee will consider the timing of a post, said fellow committee member Bruce Aydt. But an old post could be problematic if it was reposted or shared after Nov. 13.

Is this a solution in search of a problem? When asked how big a problem this is in the real estate industry, Difanis said it doesn’t matter and he doesn’t know – but that’s not the point.

“We know it’s a small percentage of our members. The problem is that small percentage of our members, whether it’s 1% or whether it’s 0.1%, the reputational damage to all of us is bad,” Difanis said, according to Brambila.

He cited an example: In October, a Realtor had a confrontation with two Black men recorded on camera. A short while later, a number of local news outlets reported it. Difanis said it “hurts us all reputationally because every time one of these incidents happens, the fact that the offender is a Realtor always, always, always gets reported.”

He also called NAR’s knowledge of actual events the “tip of the iceberg.”

Source: Inman News, Andrea V. Brambila

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