BARRISTER'S BRIEFING: A Teaching Moment: Addressing Sexual Harassment and a Hostile Workplace in the Real Estate Industry

By now you may have seen the headlines and heard the outrage and opinions being formed regarding the National Association of Realtors and the allegations and controversy relating to sexual harassment and hostile workplace environments. I don’t work for NAR, so I will not address any of the NAR allegations, but because I work for the Hudson Gateway Association of Realtors, I’d like to take this moment to remind our membership of their obligations as Realtors and to reinforce what we do here at the association to ensure that everyone is treated equally. I speak not just of lofty ideals, but the practical nature of them as well.

As a licensed attorney and the Professional Standards Administrator for HGAR, I’m required to follow various legal and professional codes of conduct and I provide guidance to others on these exact same topics. So, when a teaching moment such as the one we are currently encountering presents itself, I think it’s important that we seize this opportunity. Read this. Share this. Teach and guide others.

Guidance From the Past

Aside from the now defunct association of printers, Realtors were the first business group of professionals, outside of the “learned professions of medicine, engineering, and law” to adopt a Code of Ethics. It is because of this Code that Realtors have been able to succeed, grow and become the largest trade association in the United States. Our foundation is built upon the Code and our roots run deep into the land and our duty to ensure that we treat everyone equally and honestly.

Pathways to Professionalism

Pathways to Professionalism is a part of the Realtor doctrine. It is a set of voluntary guidelines and professional courtesies that all Realtors should follow, such as:

• Follow the “Golden Rule.”
• Show courtesy and respect for everyone.
• Show courtesy, trust, and respect to other real estate professionals.
• Avoid the inappropriate use of endearments or other denigrating language.
• To be successful in the business, mutual respect is essential.

At its core, Pathways to Professionalism provides the underpinnings for the Code of Ethics. While it doesn’t explicitly address sexual harassment or a hostile work environment, it does touch on these issues and it establishes a launching off point for moral conduct and protections in the workplace.

Preamble

The Code starts with a preamble. This precursor to the Code establishes its framework and, while it speaks in lofty ideals, its words should be taken to heart and incorporated into our actions:

“Such interests impose obligations beyond those of ordinary commerce. They impose grave social responsibility and a patriotic duty to which Realtors should dedicate themselves.”

“[Realtors should] eliminate practices which may damage the public or which might discredit or bring dishonor to the real estate profession.”

“The term Realtor has come to connote competency, fairness, and high integrity resulting from adherence to a lofty ideal of moral conduct in business relations.”

All these excerpts shine a light on the ethical duty of Realtors to be fair, to maintain a moral compass, and to hold themselves out as the standard bearer of fairness, social justice and equality. Sexual harassment and creating a hostile work environment run completely contrary to these ideals and there is no place for allowing such activities.

The Code of Ethics

The Code sets forth various ethical requirements. Again, none of the articles directly address sexual harassment or a hostile workplace but they are touchstones for the principle that sexual harassment and hostile workplaces should not be tolerated. For example, various Articles of the Code refer to a number of worthwhile principles:

• Article 1: “…treat all parties honestly.”
• Article 2: “…avoid exaggeration, misrepresentation, or concealment….”
• Article 10: “…shall not deny equal professional services….”
• Article 12: “…be honest and truthful in their real estate communications….”
• Article 15: “…shall not knowingly or recklessly make false or misleading statements about other real estate professionals….”

While these articles are relating to Realtor transactions and not the workplace, each and every article could be applied to the workplace as well. Each one carries the same tone of morality, fairness and professionalism. Any Realtor applying these Codes should, consistent with the benchmarks established by the Code, apply the same principles to their workplace. There should be no room to circumvent these ideals in favor of anything less.

HGAR Policies for Employees

At HGAR, we take sexual harassment and hostile workplace activity prevention seriously. Each employee is provided with an employee handbook. They are required to review this handbook and understand it. This handbook establishes that HGAR is a violence- and harassment-free workplace and it goes into detail on what could be deemed harassment and provides examples of inappropriate activities. These requirements/prohibitions apply not only to employee-to-employee interactions, but also to all interactions with clients, customers, guests, members, vendors and anyone doing business with HGAR. The handbook further addresses the reporting process, which is confidential, the obligation to report incidents in which an employee may encounter or observe, supervisory responsibilities, and how investigations are to be conducted and resolved. It also discusses other legal protections, including the NYS Human Rights Law, the Civil Rights Act of 1964, and other local protections that are also available.

Each employee is required to review, agree to abide by, and then sign a sexual harassment and prevention policy acknowledgment form which covers not only all forms of harassment, but also hostile workplace activities, and retaliation prohibitions. Additionally, complaint forms are provided by HGAR to all employees in an effort to break down barriers to reporting. Moreover, each HGAR employee must participate in an annual sexual harassment prevention training seminar.

HGAR Policies for Board Members

Not only are all HGAR employees held accountable for their actions, but each and every HGAR Board of Director participates in an onboarding orientation as well. During this orientation, all Board members undergo anti-harassment training, which covers the identical principles/requirements of the employee program. This training applies to old and new Board members alike. Each Board member is required to review, understand and abide by the general anti-harassment policies, as well as the more specific anti-sexual harassment policies of HGAR. They also review and agree to the no-retaliation policy as well. Like HGAR employees, Board members are provided with an understanding of not only how to report a complaint, but their obligation to report incidents that they observe. Upon completing the orientation, they must sign an acknowledgment form. No Board member will be permitted to serve until such time as they review and agree with all the HGAR policies.

Realtor Obligations

Similar to the Code, where all Realtors self-police each other, the same should hold true for any sexual harassment or hostile workplace incidents. If you are a victim of such activities, you should understand that what is/has happened is wrong and should not be tolerated. You are encouraged to report it because if it goes unaddressed it could continue or increase. If you observe someone being the subject of such actions, you should report it. We all must work together to eradicate actions that are wholly unacceptable and hold those that violate policies and the law accountable.

Conclusion: Time to Step Up

Sexual harassment and hostile working conditions should never be acceptable. As a local association, we have taken steps to irradicate what was once considered permissible. NAR has taken steps to create a Presidential Advisory Group (PAG) focused on NAR’s culture to determine what more NAR can be doing. So now I ask, “What are you doing?” I encourage all of you to join together to do your part as well. I encourage all brokerages to adopt anti-harassment policies and procedures, not only for your employees, but also for your agents/independent contractors. I ask that each of you do your part to eliminate bad “habits,” identify improper conduct, and call out those that fail to embrace the high standards, ideals and moral conduct that is required of all Realtors.

Realtors are special. We are leaders. We are socially progressive. We are innovators. We care. Do not sit complacently by assuming that others will step up for you. It’s time for you to step up.

As General Counsel and Professional Standards Administrator for HGAR, I am here to answer any questions and assist you however I can.