Could misgendering a transgender person violate the new changes to the National Association of Realtors‘ Code of Ethics? It depends on the context, according to the first of six monthly training webinars the 1.4 million-member trade group will be hosting in the wake of the changes.
Last month, NAR’s board of directors passed controversial changes to its professional standards to crack down on racist and discriminatory speech and behavior. The changes, which became effective immediately on Nov. 13, apply NAR’s Code of Ethics and Standards of Practice to all of a Realtor’s activities, not just those related to real estate; prohibit hate and harassing speech against protected classes; prohibit all discrimination, not just willful discrimination, against protected classes; and recommend that ethics violations be considered under membership qualification criteria.
One of the policies that was approved, Standard of Practice 10-5, reads as follows: “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.” A Realtor that violates the policy would be charged under Article 10 of the Code of Ethics, which prohibits denying equal professional services to anyone in those protected classes.
The changes were heavily debated before they were approved, including at the NAR board of directors meeting. The board, comprised of more than 800 members, discussed the changes for an uncharacteristic one hour and 48 minutes before voting on them, according to Matt Difanis, chair of NAR’s Professional Standards Committee, which proposed the changes. Difanis hosted the first monthly training along with fellow committee member Bruce Aydt and NAR staffer Diane Mosley. NAR held the webinar on Monday and the recording is posted online.
At the first training, which was attended by about 2,000 people, Difanis and Aydt went over the ethics changes and repeated much of what they had already explained during NAR’s annual conference last month. But they also offered clarifications to some burning questions asked by Realtors.
Supporting certain political candidates and due process
Some Realtors expressed concern that anything they say could be taken as offensive if it’s not “politically correct” and they could therefore be hauled into an ethics hearing. But grievance committee volunteers are trained to follow a due process procedure, according to Aydt.
“What the complainant brings in has to be proven by clear, strong and convincing proof in front of a hearing panel before there can be any determination” whether there’s a violation, he said.
Another attendee asked: “In today’s highly charged political environment showing or expressing support for a particular party or a candidate can be interpreted by others as racist or misogynistic. If such a case is made, how will grievance or professional standards committees respond?”
Difanis said expressing support for a candidate by, say, displaying a bumper sticker, is “nowhere near rising to the level of hate speech, epithets or slurs” directed at a protected class or a member of a protected class because of their membership in that protected class. Such a complaint would probably not make it past a grievance committee to a hearing, according to Difanis.
“If it does, it’s got to then reach a clear and convincing standard of proof,” he said. “You’ve got to introduce the evidence and you have to present credible testimony and you have to get past that clear and convincing hurdle.”
NAR’s Code of Ethics and Arbitration Manual is a 250-page book that volunteers and professional standards administrators use to process ethics cases, Mosely said. Members also have the right to challenge any members of a hearing panel for bias and have the right to an appeal, Difanis said.
“There’s the hundreds of pages of due process protections that protect every one of the 1.4 million members,” he said.
“And all of those hundreds of pages together, along with multiple pages just devoted to guiding hearing panels on how to interpret 10-5, all of that is what is designed to keep the actual implementation of this narrowly focused at weaponized discriminatory hate speech based on our Article 10 protected classes.”
Someone asked whether an image posted before Nov. 13 that remains on a social media page could be actionable. Aydt said probably not because a grievance committee will consider when the original act occurred. However, if the original poster or another Realtor re-posts the image after Nov. 13, then that could apply, he said.
‘Tip of the iceberg’
Some Realtors have asked how big a problem hate speech really is in the industry. Difanis had two responses: 1. It doesn’t matter. 2. We don’t know.
“We know it’s a small percentage of our members. The problem is that small percentage of our members, whether it’s 1 percent or whether it’s 0.1 percent, the reputational damage to all of us is bad,” he said.
He highlighted a recorded incident in October that went viral in which a Realtor told two black men that the area in front of his condo is “a no-n—- zone.” That incident was covered by at least a half dozen news outlets, including international sources, Difanis said.
“There’s a stack of these,” he said. “Part of why it doesn’t matter is 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.”
Known incidents are just the “tip of the iceberg” because only some incidents are reported to local associations and even fewer are reported to state associations or NAR, according to Difanis.
For instance, Difanis himself is broker-owner of a multi-office firm in Central Illinois with 60 agents. Year to date, he’s fired two agents — one for racially insensitive comments posted on social media for the second time after an initial intervention and the second for using “an outright racist slur” in a comment thread on a public figure page. Neither of those incidents were reported to the local Realtor association and both of those agents were re-affiliated with another brokerage within a day, Difanis said.
“The reality is the private marketplace can’t address it. We’re really the only people that can address it because it’s purely private discriminatory speech,” he said, noting that the government can’t touch speech outside of licensed activities because of the First Amendment, but that NAR, as a private, voluntary organization, can. Private employers and other trade organizations already sanction such speech, he added.
Another attendee, who noted they were from the South, asked: Would referring to a person who appears to be of a particular gender by the gender pronouns for the apparent gender be a violation?
Difanis said that in order to qualify, speech must not merely invoke a protected class such as gender identity or sexual orientation, but rather must be hate speech, epithets or slurs aimed at a protected class. While he cautioned that he and Aydt could not give advisory opinions in advance, he did say that, generally, inadvertently misgendering someone would not rise to the level of a violation.
But that depends on the circumstances, he added. “If you get somebody who is intentionally, repeatedly and maliciously doing it, I suppose somebody could file a complaint and if the context proved to a clear and convincing standard that somebody was intentionally, repeatedly and maliciously doing it for the purpose of harassing a transgender individual, then that could result in something,” Difanis said.
Context and intent matter, Aydt added.
“Is it an inadvertent misuse of a pronoun that they weren’t even aware of? Or is this something where the person specifically said, ‘I want to be called by X pronoun’ and repeatedly and maliciously the Realtor does not use that term, refers to them as a term they do not want to be called with?” he said.
Other Realtors have asked if the new changes mean that they’ll be brought up on ethics charges because their church teaches them that same-sex marriage is a sin.
“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.”
“That individual might ask: What if I share that belief?” Difanis added. To address that he brought up a particularly salient example of “weaponized speech” he has mentioned before where a Realtor posted on a business Facebook page: ‘Gays and lesbians are guilty of murder, according to the Scriptures.’”
“That isn’t simply saying, ‘My church teaches that same-sex marriage is a sin.’ That’s weaponized hate speech that is directed against a protected class of individuals,” he said.
“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.”
Everyone belongs to protected classes
Another attendee asked why the changes were only directed at protected classes, not everyone, and whether that meant hate slurs could be directed at white people and be okay.
“[There is] this common misperception that the protected classes are all a one-way street and they’re not,” Difanis said. “Everybody is a member of one or more protected classes. The protected class isn’t being non-white; the protected class is race.”
“So if a Realtor were to engage in hate speech, epithets or slurs based on my being white, that would be actionable,” he added. “Or I happen to be Christian. If somebody who is from a different religion uses hate speech directed at me on the basis of the fact that I’m a Christian or that I’m a white male Christian, all of that’s actionable.
“So understand, the protected classes exist because of some really awful historic baggage where discrimination was most commonly aimed at particular sub-groups, but the protected classes themselves go in both ways.”
Do brokers have to supervise their agents’ social media profiles?
What activities fall under broker supervision depend on state law, according to Aydt. Whether an action could be taken against a broker would in part depend on whether the broker was aware of the discriminatory speech and whether the broker chose to assist the agent in understanding the Realtor Code of Ethics, he added.
The training webinar was an hour long and the hosts noted that there were many questions remaining, including whether displaying the Nazi flag or the Confederate flag counted as hate speech.
“This is not the end of the conversation,” Difanis said.
The next monthly training is scheduled for Dec. 16.