Sexual Orientation Discrimination

QUESTION: The REALTOR® Code of Ethics has been changed to require REALTORS® to conduct their brokerage activities without regard to a person’s sexual orientation or gender identification. I know that in the Code of Ethics it states that if there is a conflict between the Code of Ethics and the law, the law takes precedence. Since neither sexual orientation nor gender identification is one of the protected classes under Federal or North Carolina fair housing laws, wouldn’t the law take precedence?

ANSWER: No. You are correct that there is a difference between the Code of Ethics and Federal or State fair housing laws with respect to discrimination based on sexual orientation or gender identification, but that does not mean that there is a conflict between the Code and the law. A conflict would exist if the Code of Ethics required a REALTOR® to do something that was against the law, and the Code may not properly be interpreted to require a REALTOR to do something illegal. On the other hand, the Code of Ethics may impose a duty on a REALTOR® in the conduct of his or her brokerage business that is higher than the minimum duties required under law. Adding sexual orientation and gender identification to the list of protected classes in Article 10 of the Code of Ethics is one of several examples where the Code of Ethics imposes greater duties on NC REALTORS®.

As you know, the NC Real Estate Commission’s rules require agency agreements to include prescribed antidiscrimination language. As a result of the change to the Code of Ethics, NCAR’s agency agreements have been amended to make it clear that in addition to the seven protected classes referenced in the language required by the Commission’s rule, REALTORS® have an ethical duty to conduct their brokerage activities without respect to the sexual orientation or gender identification of any party or prospective party to the agency agreement.