Facing a string of (thus far unsuccessful) legal challenges filed against local associations that enforced Standard of Practice 10-5—and further compounded by insurance carriers unwilling to provide coverage against such litigation, Standard of Practice 10-5 urgently required updates to improve objectivity, improve uniformity of interpretation and enforcement, to deter and survive future legal challenges, and to improve associations’ access to insurance coverage.
At its June 5, 2025, meeting, the National Association of REALTORS® Board of Directors passed a motion from the Professional Standards Committee (hereinafter, “Committee”), which substantially reworded Standard of Practice 10-5. The old language prohibiting “harassing speech, hate speech, epithets, or slurs” was replaced with
- REALTORS®, in their capacity as real estate professionals, in association with their real estate businesses, or in their real estate related activities, shall not harass any person or persons based on race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity.
- As used in this Code of Ethics, harassment is unwelcome behavior directed at an individual or group based on one or more of the above protected characteristics where the purpose or effect of the behavior is to create a hostile, abusive, or intimidating environment which adversely affects their ability to access equal professional services or employment opportunity.
Including a motion passed by the Professional Standards Committee, which did not require Board approval, there are three basic changes:
- A change to Policy Statement 29 in the Code of Ethics and Arbitration Manual now states that “REALTORS® may only be subject to disciplinary action under the Code with respect to their capacity as real estate professionals, in association with their real estate businesses, or in their real estate-related activities.” This marks a change from the previous expansion in November 2020 to make REALTORS® subject to discipline with respect to all of their activities.
- A similar change within the wording of Standard of Practice 10-5 limiting applicability to REALTORS®’ “capacity as real estate professionals, in association with their real estate businesses, or in their real estate-related activities.”
- Tying Standard of Practice 10-5 to the term “harass.” Aside from being thoroughly fleshed out in various other NAR documents, Standard of Practice 10-5 explicitly states that “[a]s used in this Code of Ethics, harassment is unwelcome behavior directed at an individual or group based on one or more of the above protected characteristics where the purpose or effect of the behavior is to create a hostile, abusive, or intimidating environment which adversely affects their ability to access equal professional services or employment opportunity.”
The result is an improved framework that improves clarity and objectivity. To the extent that the scope is now limited by the new “capacity” requirement, other tools (such as sanctions for violation of membership duties) are in place to address egregious cases that may not otherwise meet the “capacity” requirement in the Code.
History of Standard of Practice 10-5
Starting with a special meeting of the Professional Standards Committee on June 29, 2020, the Committee began a lengthy process of deciding whether and how changes to the Code might be used to combat a proliferation of discriminatory hate speech by REALTORS®, often on social media, and often outside the context of their real estate work. This was just weeks after the murder of George Floyd and the ensuing riots. Discriminatory posts by REALTORS® on social media were frequently going viral and/or getting picked up my mainstream media, which virtually always highlighted the fact that the bigoted content was from a real estate broker. The Committee determined that the hate speech was causing serious harm to those at whom it was aimed, as well as harming the reputation of all REALTORS® by association. The initial meeting of the full Professional Standards Committee generated an overwhelming desire to tackle this challenge with changes to the Code, and the matter was referred to the more specialized Professional Standards Procedures and Interpretations Advisory Board (hereinafter, “Interps”).
Interps met via Zoom on approximately five different occasions to craft, debate, and revise language in an effort to address the problem of discriminatory hate speech by REALTORS®. The language that was agreed to was new, having never appeared anywhere else in the Code or in other documents, such as member conduct policies or association bylaws. To ensure that the new Standard of Practice would reach hate speech by REALTORS® in any context, Interps also recommended changing Policy Statement 29 in the Code of Ethics and Arbitration Manual—which had previously read that “a REALTOR® shall be subject to disciplinary action under the Code of Ethics only with respect to real estate-related activities and transactions involving the REALTOR®.”
In fall 2020, the Professional Standards Committee passed the motion containing the original Standard of Practice 10-5 language and changed Policy Statement 29 to make the Code applicable and enforceable to all a REALTOR®’s activities.
At the time of the original debate, there was much discussion about how to make the new Standard of Practice as objective as possible, while still giving hearing panels appropriate discretion for determining what constituted a violation. American jurisprudence would not make it feasible—for example—to replicate the language of our Canadian counterparts, whose code states that “[a] REALTOR® shall not engage in conduct that is disgraceful, unprofessional or unbecoming of a REALTOR®.” This would be too broad, too subjective, and unable to survive inevitable legal attacks.
The other general concern centered around ensuring that a prohibition against discriminatory hate speech would not be used to sanction REALTORS® for private religious or political beliefs. Specifically, Interps and the full Committee sought to clarify through case interpretations and other written supplements that Standard of Practice 10-5 was not intended to sanction—for example—a REALTOR® teaching Sunday school at a mainstream conservative evangelical church whose lesson includes an interpretation of scripture that deems same sex marriage to be contrary to church doctrine. The intent of Interps and the Committee was to target what was sometimes described as “weaponized hate speech.” This was understood to include speech aimed at the LGBTQ+ community with the intent of causing harm, as contrasted with a message along the lines of “our faith teaches us to love everyone, but we do not condone same sex marriage.”
A particularly memorable example of what the Committee and Interps sought to prohibit and sanction was a social media post by a REALTOR® in Georgia on his business page, stating that “gays and lesbians are guilty of murder according to scripture.”
As anticipated, Standard of Practice 10-5 generated legal challenges, along with attempts in multiple state legislatures to pass laws prohibiting its enforcement. It survived those challenges, but additional legal challenges were ongoing and virtually assured in the future.
Rationale for Updates in 2025
While NAR promulgates the Code, local associations are charged with enforcing the Code. Thus, when legal challenges arise, they often take the form of a REALTOR® who was found in violation suing the local association and the individual volunteers involved in the hearing. Despite having survived various legal challenges, continued litigation and the threat of future litigation meant that local associations faced potentially ruinous legal expenses, and they were being told that their insurance would not cover the cost of defense. Thus the status quo posed an existential threat to any associations that enforced Standard of Practice 10-5.
The task for Interps and the Committee in 2025—with significant input from NAR legal counsel—was to update Standard of Practice 10-5 in a manner that would make it more objective, would lend itself to more uniform interpretation and enforcement, and would more closely align with other professional trade organizations, such that it would discourage legal challenges, survive any that may arise, and allow associations to obtain insurance coverage. And to do all of this while preserving the original spirit of 10-5: making clear that hate has no home among REALTORS®.
Due to the well-publicized NAR harassment scandal in 2023, NAR now has a voluminous body of policies relating to harassment. Whenever possible, it makes sense for the Code to avoid the use of novel language that exists nowhere else in policy in favor of language that is well defined, well understood, and exists throughout other documents governing REALTOR® conduct. By this standard, switching to the concept of harassment as the centerpiece for the updated Standard of Practice 10-5 not only makes sense, but is arguably an improvement, better capturing the original intent of prohibiting and sanctioning weaponized hate speech by REALTORS®.
Because the change to Policy Statement 29 had already passed the Professional Standards Committee and did not require Board approval, the ability to sanction REALTORS® for violations would have been subject to the new “capacity” requirement, whether or not it appeared in the new Standard of Practice.
Practical Effect of Changes
Replacing the old language of 10-5 with “REALTORS® . . . shall not harass” does an excellent job of capturing the spirit of prohibiting weaponized hate speech. Importantly, the definition that now appears in Standard of Practice 10-5 is quite broad:
As used in this Code of Ethics, harassment is unwelcome behavior directed at an individual or group based on one or more of the above protected characteristics where the purpose or effect of the behavior is to create a hostile, abusive, or intimidating environment which adversely affects their ability to access equal professional services or employment opportunity.
This means that no one can claim immunity due to lack of intent. If a Complainant can provide strong, clear, and convincing evidence that the behavior (which can include speech) had the effect of creating a hostile, abusive, or intimidating environment, the conduct is prohibited and sanctionable.
The “capacity” qualifier is also not as restrictive as one may think. In the Professional Standards Committee meeting on June 3, 2025, NAR legal counsel indicated that a social media post that is ostensibly personal and not part of a Respondent’s real estate work could still be deemed actionable by a hearing panel if, for example, the profile or other posts in the timeline identifies the poster as a real estate professional.
Finally, for egregious cases of discriminatory hate speech that are completely unrelated to REALTORS®’ “capacity as real estate professionals, in association with their real estate businesses, or in their real estate-related activities,” there remain other pathways for discipline, such as for violation of membership duties. This mechanism has been used successfully to terminate REALTOR® membership in such cases.
Conclusion
The National Association of REALTORS® urgently needed to update Standard of Practice 10-5 to head off a potential existential threat to the local associations charged with enforcement. Failure to update SOP 10-5 could have jeopardized all enforcement of it. Without appropriate history or context, the recent changes looked to many like a rollback or a capitulation to organized anti-wokeism or the current administration’s anti-DEI actions and sentiments. In reality, the changes reflect an improvement to the letter of the Standard of Practice, while preserving the original spirit of it. The scope of enforceability is not being narrowed as much as some might assume, and for egregious situations that fall outside the reach of the 2025 revisions, other mechanisms for discipline exist. The changes help NAR continue its commitment to fair housing while allowing local associations to continue their enforcement work.
Disclaimer
I do not speak or write on behalf of the Professional Standards Committee or the National Association of REALTORS. I have not been on the Committee since 2022, nor have I been privy to any confidential information. My analysis is based on my history of having served as the 2020 Professional Standards Committee Chair, having attended the open Committee Meeting on June 5, 20205, as well as numerous credible (but sometimes unofficial) reports regarding the rationale for the changes.
Matt Difanis
Matt@MattDifanis.com
217-369-6765
