How broad is Standard of Practice 10-5’s prohibition on “hate speech”?

QUESTION: In November 2020, the National Association of REALTORS® adopted Standard of Practice 10-5 of the REALTOR® Code of Ethics barring REALTORS® from using “harassing speech, hate speech, epithets or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.” Does SOP 10-5 apply to speech by a REALTOR® that is not directly related to a real estate transaction? Does it apply to more than just verbal and written statements?

ANSWER: NAR has revised one of its Statements of Professional Standards Policy and published both a new Appendix and multiple new case interpretations making it clear that SOP 10-5’s prohibition on the use of harassing speech, hate speech, epithets and slurs is not limited to real estate transaction-related speech and extends to images and symbols, not merely verbal and written statements.

A revised version of Statement of Professional Standards Policy 29 (“PSP 29”) was adopted by NAR’s Board of Directors in November 2020, simultaneous with the adoption of SOP 10-5. It stated that “[a] REALTOR® shall be subject to disciplinary action under the Code of Ethics with respect to all of their activities.” An article explaining that change was published by NAR in February 2021. It notes that the approved change “should make it clear to members and associations alike that discriminatory speech against protected classes is a violation of the Code of Ethics and is subject to appropriate disciplinary action, even if that discriminatory speech occurs outside a real-estate-related activity or transaction.” Although PSP 29 was amended again in May 2021, that amendment did not affect the broad application of SOP 10-5.

Also in November 2020, NAR’s Professional Standards Committee approved a new Appendix to Part Four of the Code of Ethics and Arbitration Manual. Entitled “Appropriate Interpretation of Standard of Practice 10-5 and Statement of Professional Standards Policy 29,” Appendix XII to Part Four advises that “Standard of Practice 10-5 should be interpreted as applying equally to speech, images and symbols.” Appendix XII concludes with this statement: “[A] 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®.”

In 2021, NAR’s Professional Standards Committee published six new Case Interpretations related to SOP 10-5. Case Interpretations are official statements of NAR policy. Case Interpretation 10-6 involved a REALTOR® who used racial slurs in some social media posts wholly unrelated to her real estate practice. At her ethics hearing, the REALTOR® admitted making the posts but denied that they interfered with her ability to provide equal professional services to anyone based on their race. The Hearing Panel concluded that the REALTOR®’s comments constituted the use of hate speech and slurs, and that such use reflected discrimination in violation of Article 10.