Handling a client’s intent to discriminate based on sexual orientation or gender identity
QUESTION: The subject of discrimination based on sexual orientation or gender identity has been in the news a lot recently, and it has me thinking. Let’s say I’m going over the listing agreement form with prospective seller clients and they tell me they would be opposed to selling their house to a gay person or a person who identifies with a gender other than what is on their birth certificate. Can I take the listing? Does the answer change if they don’t say anything up front, I take the listing, and then they tell me they don’t want to sell their property based on a buyer’s sexual orientation or gender identity?
ANSWER: In our view, the answer to both your questions is “no.”
Article 10 of the REALTOR® Code of Ethics states that REALTORS® won’t deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity, and further, that REALTORS® will not be parties to any plan or agreement to discriminate for any such reason. In our view, if the sellers voice their opposition during your listing presentation to selling their property to somebody based on their sexual orientation or gender identity, you should point out your ethical obligation not to discriminate on any such basis. If the sellers indicate that they will not prevent a sale of the property to someone based on any of the nine classes listed in Article 10, it would be okay for you to take the listing. However, if they remain steadfast in their opposition to selling to someone based on any one or more of the protected classes listed above, we believe it would be unethical for you take the listing with the understanding that they will not sell their property to the member of any such class.
We don’t believe the answer changes if you don’t find out about the seller’s views until after you take the listing. While it is true that State and Federal fair housing laws do not include sexual orientation or gender identity as protected classes (at least not currently), the Exclusive Right to Sell Listing Agreement form states in bold capital letters that REALTORS® are ethically obligated to conduct all brokerage duties without respect to gender identity or sexual orientation. You should point out your ethical obligations to the sellers. If they nevertheless continue to indicate opposition to selling their property to someone based on gender identity or sexual orientation, we believe it would be a breach of the listing agreement and that you should terminate the listing agreement based on such breach to avoid an allegation that you are engaging in unethical conduct.
REALTORS® should “stay tuned” on this subject because the law is evolving rapidly.
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