There are 17 articles, or sections, in the REALTOR® Code of Ethics and Standards of Practice—a manual defining the professionalism morals which REALTORS® nationwide must uphold—and within those 17 articles, 90 subsections laying out specific values, best practices and guidance on everything from financial conflicts from personal banking choices, to making defamatory statements about other REALTORS®.
Out of these more than 100 precepts and expectations, it is not some obscure legal precept or delicate policy detail that has inspired the National Association of REALTORS® (NAR) and dozens of local associations to put out FAQ’s and lengthy explanatory texts over the last year or so. Instead, one small paragraph—Article 10-5, consisting of 27 words—has drawn a tremendous amount of attention, scrutiny and pushback after its addition to the code in November of 2020. It reads simply:
“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.”
Marki Lemons-Ryhal is a speaker, author and real estate educator who trains agents on social media use, fair housing and a variety of other subjects. She saw, both as a Black woman and as a member of the REALTOR® community, that the need for addressing hate speech among REALTORS® was obvious and urgent by the time 10-5 was being considered.
“There were a lot of problematic things being said ,” Lemons-Ryhal reflected. “We are the largest trade organization globally, and we definitely had harassing speech, hate speech, racial slurs—pertaining to race, color, relgion, sex handicap.”
That summer, Matt Difanis, a co-owner and team leader for RE/MAX Realty Associates in Illinois, was serving as chair of NAR’s Professional Standards Committee. In those months that were defined by a nationwide racial reckoning following the murder of George Floyd by police officer Derek Chauvin, Difanis says NAR saw a “massive proliferation” of hate speech reports.
“In the past, NAR would be reached out to a handful of times a year,” he says. “The last half of 2020, it was close to a 100 of those calls that came to NAR, compared to half a dozen a year in the preceding years.”
In the emotional environment of the Black Lives Matter protests, some REALTORS® were using slurs and airing ugly, racist ideas, stereotypes, attacks and incitements—sometimes in person, often on social media. These peoples’ colleagues as well as the public were understandably outraged, and Difanis said he was asked by NAR to look into whether there was a way to address these heinous and widespread incidents with policy.
The question was not whether racism and hate among REALTORS® existed. The challenge when crafting 10-5 was being able to classify, identify and punish hateful conduct without the regulation becoming a political tool, or without inadvertently punishing those whose conduct was not racist or discriminatory.
A little more than a year later, the effects or accomplishments of 10-5 are hard to quantify. Some REALTORS® have filed lawsuits saying that they were treated unfairly under the rules. Lemons-Ryhal says that qualitatively, the kind of egregious and widespread racism and hate heard from REALTORS® in 2020 is at a lower level than it was before the 10-5 provision passed, though she cautions it is hard to isolate the variables that might have contributed to that decline.
“We’re not in an election year,” she points out. “Since we’re now no longer in an election year, and because the verdict came out to satisfy, I guess, most humans, we haven’t seen as much —not that it doesn’t exists and not that we didn’t need 10-5, but social unrest is not at the same height as it was then.”
Pitchforks and Pragmatism
Difanis describes the lead-up and the immediate aftermath of 10-5 as a broad recognition of the hatred experienced within, and propagated by, the real estate community—and a desire to do something about it—along with intense backlash from those who resisted any acknowledgment of racism, or those with real concerns about overreach.
“People were hearing and often misunderstanding,” Difanis says. “The common lines of dissent were, well this is the latest in the war against free speech, or this is political correctness run amuck, or this is a knee-jerk reaction, or this is too much, too fast, too soon.”
“I had strangers sending me Communist memes on my smartphone—I was part of the communist takeover,” he laughs.
What most people who condemn 10-5 and its goals offhand don’t see, Difanis claims, is how much work, thought and legal scrutiny went into crafting the rule, and how it continues to be refined and crafted to fulfill its purpose—making sure no one can call themselves a REALTOR® if they propagate hate.
Along with a multifaceted legal review—including by Difanis himself, who has a law degree—the 10-5 changes were subjected to “spirited” discussions over the course of several hectic months involving many experts and stakeholders.
“We on the committee were satisfied that we were on very sound legal footing,” Difanis says. “It is a fast-ish process—it’s way faster than the legal system.”
Underpinning the structure of a rule like 10-5 is the human element—the people the rule is intended to protect, and the REALTORS® who must abide by it. Lemons-Ryhal references recent incidents of REALTORS® using slurs, urging local homeowners to sell after a Black mayor was elected and joining the capital insurrection where Black police officers were subjected to slurs and racist abuse.
These are things the real estate community—or really any community—simply cannot tolerate, she says. At the same time, any focus on progress has to start with education and exposure before people become radicalized and embittered, and punishment by itself is not a solution.
“That education—if that state allows for face-to face-education—they are roleplaying in a face-to-face environment,” Lemon-Ryhal says. “Some REALTORS® in our country have never had to interact with anyone who does not look like them. That’s problematic all by itself…if I go to Wyoming or I go to North Dakota, I likely am the only Black person in the room.”
“And it’s one of the reasons I love teaching because I figure if they have to meet a Black person, I might as well be the Black person that they meet,” she quips.
Difanis, who is white, believes that a lot of people were (and still are) operating on bad information, and with an excess of emotion when it comes to 10-5. He volunteered to speak to more than 100 local associations after it was passed because, he says, many people just needed to hear and understand what the process and purpose of the regulation was from someone who was “at the table.”
“I haven’t had a 100% success rate getting people to agree with me, but I have had a 100% success rate getting people to put down the pitchforks,” Difanis says.
Progress not Perfection
NAR recently filed a motion to dismiss a lawsuit by a REALTOR® who is the subject of 10-5 complaint and ethics hearing after he chose to disassociate his church from a food bank supporting LGBTQ youth. According to Lemons-Ryhal, the same kind of derogatory and discriminatory conduct that was aimed at Black folks in 2020 is being used toward the LGBTQ and Asian communities at a greater rate today.
“It is now still very tense in organized real estate,” says John Yen Wong, a broker based in the San Francisco Bay Area and co-founder of the Asian Real Estate Association (AREAA). “Most REALTORS® from whatever heritage like to say, ’I always do the right thing – regulate other people, don’t regulate me because I’m doing the right thing’…we believe over time that will have a positive impact but it’s a different world now, and social media makes it harder.”
Wong makes reference to a seminal undercover investigation by Newsday in 2019 that uncovered significant evidence of racial “steering” and discriminatory language and behavior by REALTORS® on Long Island. Though this wasn’t directly related to hate speech, Wong says coupled with the Black Lives Matter movement, it changed the conversation around race in real estate.
“There’s some systemic reasons why there is this disparity in communities and homeownership practices,” he notes.
An AREAA report last year found that over 2 million Asian people have experienced some form of racial harassment, discrimination or hate during the pandemic. Misconceptions and stereotypes about Asian homebuyers have contributed to a persistent homeownership gap in that community as well, Wong states.
Specifically looking at 10-5, Wong says even among AREAA members there is still disagreement and nuance. There are those among the Asian and Pacific Islander community that hold onto their own biases and stereotypes, he says, even as AREAA as an organization and the broader Asian and Pacific Islander community stands in “strong solidarity alongside” Black, LGBTQ and other marginalized groups in the struggle for equity.
“I support the rules, the association supports the new changes,” he adds. “I think highlighting it, calling it out will cause some change…it’s a time when we need to look at this more seriously. It’s a work in progress right now.”
According to Difanis, even as NAR is constantly reviewing policy, 10-5 already has a built-in way to begin covering one of the biggest fears of those who think the policy is an overreach or a slippery slope.
“Case interpretations are official, they are binding, they are illustrative,” he says. “In many cases they come from actual scenarios…they’re put out there so people understand that this isn’t going after your religion, it isn’t going after your politics—it is more narrowly focused than that.”
“Cranking out” these case interpretations, which the Professional Standards Committee can do proactively, is the best way to create a web of precedent and hone in on real-world limitations and applications of the code for hearing panels, according to Difanis. As recently as November, the Committee ruled on a charged issue, saying that a listing broker who included photos of the Confederate battle flag displayed in a home was in violation of 10-5.
But like decisions rendered by a court or judge, these rulings are purposefully narrow, and Difanis says that some other use of that same flag would not necessarily or automatically be in violation of 10-5.
“We’re seeking to add clarity by adding those case interpretations on an ongoing basis,” he adds.
Some have criticized the processes as being too slow or opaque. Ryan Weydant, CEO of the LGBTQ+ Real Estate Alliance, told RISMedia late last year that he was “disappointed” that the pastor who shunned the LGBTQ-associated food bank was allowed to continue working in real estate during the review process. He pointed out that most professions and industries, from police to media to pro athletes, have policies to “sideline” members who are credibly accused of ethics violations while an investigative process plays out.
“I view it as a major injustice that he’s going to be able to continue to practice real estate without any repercussions for his actions,” Weydant says.
This can have a chilling effect on other members of the community, Weydant argues, knowing that it might take weeks or months before an alleged violator is removed from their position of power.
Another issue is how complaints are handled. Difanis says the confidentiality of hearings and rulings (which is maintained unless the REALTOR® is found to be “in violation of the public trust” and must be reported to fair housing and licensing authorities) is vital to protect people regardless of their guilt or innocence. Lemons-Ryhal says that some sort of an anonymous tip line, which exists in some states but not nationally, could go a long way toward weeding out hate among REALTORS®, as many are afraid they will themselves be shunned in retaliation for reporting hateful or racist behaviors.
“Most REALTORS® are not going to tell on one another because of the uniqueness of our industry,” she says. “In order to get a real estate deal done, we must collaborate. No one wants to risk their ability to collaborate with all people because they told on someone else’s actions when we’re all independent contractors.”
Wong says he “suspects” AREAA would support an anonymous tip line, but expresses some reservations, pointing out that anonymity can breed more bad behavior.
“This is a tough issue that opens up false accusations on a very deep level. We see that every time you have an anonymous tip line for major crimes—police have to process probably 95% incorrect tips to get the right one,” he says.
Wong, Difanis and Lemons-Ryhal all point to trainings that NAR has created or made more available, including the Fairhaven simulation and implicit bias seminars. More of that will always be welcome and necessary, they agree.
As far as 10-5, Difanis says that when people understand that no one is out to get them, and the goals and processes underpinning the policy are rational, empathetic and thoughtful, they are less likely to react with fear or anger. And those who see it as imperfect or not going far enough are also right, in some sense—there is always more work to be done, he admits.
“The process is always ongoing,” Difanis promised. “We accomplished a whole bunch in one fell swoop in November of 2020, and we’ve continued to build on that.”
Jesse Williams is RISMedia’s associate online editor. Email him your real estate news ideas to firstname.lastname@example.org.