Professional Standards Committee passes case interpretation after intense debate.

After a passionate debate, the National Association of Realtors approved a case interpretation of its hate speech policy Saturday that makes display of the Confederate flag a violation of the trade group’s code of ethics.

The case interpretation says that a Confederate flag displayed in listing photos could be “reasonably construed as indicating a racial preference or illegal discrimination based on a protected class” on the part of a listing broker.

At the same time, a case interpretation having to do with Biblical passages and homosexuality prompted little controversy.

Case interpretations do not require approval from NAR’s board of directors, only approval from the trade group’s Professional Standards Committee, according to NAR.

A year ago, the 1.5 million-member trade group passed controversial changes to its professional standards to crack down on racist and discriminatory speech and behavior.

One of the policies 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.

Even before NAR’s board of directors approved the policy, some Realtors asked the trade group whether displaying the Confederate flag would be a violation. At the time, NAR declined to specify whether something would or would not violate the policy, saying its Professional Standards Committee, which is made up of member volunteers, would approve case interpretations to help members and standards enforcement volunteers understand the code’s applicability.

So far, the committee has approved a total of 11 case interpretations related to Article 10, six of which have to do with the new hate speech policy.

The committee approved two of the 11 on Saturday, after an intense forum during which attendees at the trade group’s Realtors Conference & Expo in San Diego argued for and against approval of the case interpretation involving the Confederate flag.

What the Confederate flag case interpretation says

That case interpretation reads:

Case #10-11: Display of Symbols

When searching real estate listings on a brokerage website, a potential homebuyer noticed a listing with the Confederate flag prominently displayed in the property photos. She filed an ethics complaint against the listing broker alleging a violation of Article 10, as interpreted by Standard of Practice 10-3 and Standard of Practice 10-5, at the local Association of Realtors. The complainant argued in her complaint that the Confederate flag is a symbol of racial exclusion and that the listing broker’s display of the photos conveyed a preference and discrimination based on race. The local Association’s Grievance Committee reviewed the complaint and forwarded it for a hearing.

At the hearing, the complainant testified that she felt threatened by the display of the Confederate flag and took it to mean that she would not be welcome in the home or the neighborhood if she were to make an offer on the property.

The listing broker testified that he should not be held responsible for what is displayed in a client’s home and could not offer an explanation for his clients’ motives in displaying the Confederate flag.

The Hearing Panel concluded that the listing broker is indeed responsible for content he displays publicly when engaging in real estate brokerage. The Hearing Panel also discussed whether the display of the flag indicated an illegal preference or discrimination.

Using the standard of whether a “reasonable person” would think display of the Confederate flag conveyed a discriminatory preference, the Hearing Panel determined that the listing broker’s inclusion, intentional or not, of photos including the Confederate flag could be reasonably construed as indicating a racial preference or illegal discrimination based on a protected class, and therefore was a violation of Article 10, as interpreted by Standard of Practice 10-3 and Standard of Practice 10-5.

The case interpretation references not just the new hate speech policy (10-5), but also Standard of Practice 10-3, which was first adopted in 1994, and says:

Realtors shall not print, display or circulate any statement or advertisement with respect to selling or renting of a property that indicates any preference, limitations or discrimination based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

The debate

Several conference attendees who opposed the case interpretation used a “slippery slope” argument, saying that other symbols displayed in a client’s home could be perceived as exclusionary.

Brenda Fioretti

“I am very concerned about using photographs of homes that we have listed as a sample for the case interpretation because the flag could easily change to a religious cross or a star of David or a gun in the home,” said Brenda Fioretti of the Naples Area Board of Realtors in Florida.

“We take many, many photos. We have professionals to take photos. I think it’s onerous for us as listing agents to be held responsible to this level of photos that are taken of a listing that we have. I think we’re going down a hole that could be very, very dangerous.”

Ira Bland

Ira Bland of the Glendale Association of Realtors in California said that “a lot of people” consider the American flag “a negative symbol as well” and there are clients who will display that flag or have a flagpole in their yard.

“Someone [can say], ‘I’m not happy with that. I feel insulted’ or whatever,” Bland said. “So you have to be very careful when you’re talking about usages of flags. I understand the concerns expressed in this case, but I’m very leery about any flag because there are people who will always claim that they are offended by the particular flag that they see.”

Michelle Walker

Michelle Walker of the St. Charles County Association of Realtors in Missouri and chair of NAR’s Diversity Committee informed attendees that the committee had voted on Friday to unanimously support the case interpretation.

“There are definitely symbols that display things that we believe should be a part of the code of ethics, similar to a swastika,” she said.

Marion Proffitt

Forum chair Marion Proffitt pointed to the need to keep evolving the Realtor Code of Ethics with the times.

“In regards to the swastika, there might have been a time where that would not necessarily have been inflammatory, but I don’t know how many people would feel comfortable if they were taking a listing picture of a home that had a swastika on the wall, including it in their listing pictures,” she said.

Lisa Herndon

Lisa Herndon of the Charlottesville Area Association of Realtors in Virginia offered her perspective as “a woman of color” and a real estate agent who knows that some of her clients would not feel welcome at a listing with a Confederate flag.

“It does send a direct message saying, ‘This is who we are. You are not welcome in this particular listing,'” she said.

She said the “slippery slope” argument should end.

“We’ve heard that before,” she said. “I trust in your ability to make the right decisions and to know when we’re going too far. It is vital that we move with the times and we are in a different moment. This is a time when we need to stand up for what we know is right.”

To the concern about the American flag, she said, “There is no confusion about what that Confederate flag means. To equate that with the American flag is a falsity within itself.

“Every real estate agent has the ability to select particular pictures when they’re looking at them. We’re not blaming the photographer. We’re not blaming the seller. When we join this organization, we are held to certain professional standards and in no way should we support or encourage racial flags that we know come with a very controversial history.

“And this is coming from an African American who is offended by that flag. There is nothing about the American flag that’s ever caused me to be offended.”

Her comments prompted applause that lasted several seconds.

Katie Berry

Katie Berry of St. Louis, Missouri, urged the committee to look at the situation through the eyes of consumers.

“When they see it and say, ‘I’m not welcome in that listing. I’m not welcome in that home. I’m not welcome to that neighborhood,’ we need to listen to that,” she said.

“We need to err on the side of fair housing. We need to err on the side of not discriminating when there’s a question about it. And it’s not the same as a Mexican flag. It’s not the same as an English flag. It’s not the same as an Ecuadorian flag. It’s a symbol that was used to maintain the enslavement of people based on their race.”

An attendee from Sacramento, California, said she was offended by the Confederate flag as well, but that agents cannot control or change how their seller clients feel or what they do. She asked: “Would you rather know, before you get to the property, that there’s a Confederate flag in it?”

“I guess if I were showing clients, might we just as soon see it in the MLS and maybe you and your client decide not to see that home in the first place because of that symbol,” she said.

Herndon responded by saying that the case interpretation was about what NAR chooses to communicate about itself as a whole.

“When those pictures go out, they represent not just that listing agent, but the real estate industry, and the Realtors,” Herndon said. “What we represent is not hate. It is not racism.

“And you know what, as a woman of color, yes, I don’t care if I walk into that house or that neighborhood and see those Confederate flags. I’d rather deal with that than creating a space for them to live and marketing it all over other spaces for them to tie it to our association.

“So no, I’m not offended when I walk in, because my buyers and I have a right to decide where we want to go. And hey, maybe we want to make inroads into those areas where we don’t feel welcome, to create a change. It only takes one person to create a change. And this is monumental. So let’s rise to the cause. ”

David Tanner, CEO of the Sacramento Association of Realtors, said he opposed the case interpretation specifically because of the debate it had caused.

David Tanner

“Case interpretations are designed to have one function: to provide clarity to what’s required under the code,” he said.

“Probably everybody in the room agrees with the concept that we think [the symbol] is wrong, but I think that this current case interpretation as presented, misses that mark of providing clarity. I think that should be sent back to be reworked.”

Amy McCoy

Amy McCoy, a broker from what she said was “one of the most racist counties” in Georgia where she receives hate mail at her office, said that if anyone is questioning whether the behavior described in the case interpretation is appropriate, “look at yourself in the mirror.”

Axay Parekh | Credit: Oklahoma Association of Realtors

Axay Parekh, vice chair of NAR’s Multicultural Real Estate Leadership Advisory Group, pointed out that advertising rules from the U.S. Department of Housing and Urban Development (HUD) had prohibited displays of the Confederate flag for more than 30 years.

“This is not about being offended; it’s about fair housing,” he said.

During the Professional Standards Committee meeting that followed the forum, committee member Ted Loring of the Humboldt Association of Realtors made a similar point.

Ted Loring

“In the forum, there was a lot of concern expressed about people taking offense,” he said.

“The issue is not whether or not someone might be offended. The issue is whether or not there is evidence that the agent is not providing equal access or equal service to clients. A symbol can show racial bias. A symbol can show that I support or detest a sports team. The fact I don’t like a sports team may offend some people, but the fact that I [show] racial bias is a violation of the code of ethics.”

The case interpretation was approved on a voice vote. Only a couple of committee members who attended in person voted against the motion.

Bible study and homosexuality

Another case interpretation passed with little debate. It described a situation in which a Realtor leading a study group noted that “some have said” that certain Biblical passages prohibit same-sex relationships and was consequently accused of having violated NAR’s hate speech policy.

In that case study, a hearing panel found that the Realtor’s comments “were not intended to convey a discriminatory opinion” and found him not in violation of the policy.

The case interpretation reads:

Case #10-10: Use of Speech or Ideas Included in Religious Doctrine

Realtor A leads a weekly Bible study group in the evenings. During one such study group, Realtor A led the group in a discussion of Biblical passages concerning homosexuality, referencing several differing interpretations of said passages. At one point during the discussion, Realtor A stated, “some have said these verses clearly prohibit and condemn same-sex relationships.” An attendee of the group found this to be inappropriate and filed an ethics complaint alleging a violation of Article 10, as interpreted by Standard of Practice 10-5, at the local Association of Realtors.

After a comprehensive review, the Association’s Grievance Committee forwarded the complaint for a hearing. The complainant argued that Realtor A’s statement represented his own personal beliefs about homosexuality. Realtor A confirmed that the complainant had quoted him correctly but argued that he presents all sides of Biblical interpretation for historical context, and that he is careful to leave any personal opinions out of the study group, as evidenced by his use of “some have said.”

The Hearing Panel entered executive session and 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 Realtor A’s comments were not intended to convey a discriminatory opinion and did not constitute the use of hate speech and slurs. Realtor A was not found in violation of Article 10.

No conference attendee came forward to discuss the case study at the forum. When the committee discussed it, one committee member said he personally “struggled” with the case interpretation because Realtors in different parts of the country could have different views on the situation described.

“We always have to take that into account when we’re dealing with social differences across the country, geographic differences, so on and so on,” he said.

“This could be looked at from a very, very different prism from different parts of country and get a lot of pushback.”

Email Andrea V. Brambila.

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