Ask The Lawyer By: Daniel A. Gwinn, Esq – Free Speech?
ATTORNEY DANIEL GWINN SPEAKS ON ETHICS CHANGE AND FREEDOM OF SPEECH AT NAR CONVENTION
Attorney Daniel Gwinn, of GWINN LEGAL, addressed free speech and the impact of recently published revisions to realtor’s Code of Ethics on March 4 as part of Real Estate One’s annual “Go Beyond” Convention 2021.
The revisions bar the roughly 1.4 million members of the National Association of Realtors (NARS), the country’s largest trade organization, from using discriminatory language, even when they are off duty and on social media. The changes were enacted by NAR’s governing board in response to concerns over racism after last summer’s Black Lives Matter Protests.
“There seemed to be concern among some that the new standard was a radical change, but private employers have always been able to restrict speech, on- and off-duty,” said Gwinn.
Under a new standard of practice and a revision to NAR’s policy rules, Realtors (only NARS members are allowed to use the term) may face disciplinary action for the use of “harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familiar status, national origin, sexual orientation, or gender identity” in any activities. In practice, this includes online activities. Realtors who violate the Code of Ethics may not only be fined up to $15,000, but may also lose access to the Multiple Listing Service, an essential tool of a realtor’s trade.
In his convention speech, Gwinn pointed out that the First Amendment of the Constitution only protects speech from state censorship — private employers and organizations have always been able to limit the speech of their employees or members. “Employers have always been able to place limits on what workers can say, on or off-duty,” he said. For example, he said, Shelby Township had the right to discipline its police chief when his on-line posts revealed he might be prejudiced against Black protestors; under the circumstances, his ability to fairly enforce the laws, a basic function of his position, was called into question. Employers may also discipline workers for social media comments that are at odds with the business’ image: A vegan food company, catering to consumers who believe eating meat is wrong, might find an employee who posts about hunting exploits a poor fit.
Even before the amendments, it was in the best interest of members of NAR — like most employees or members of volunteer associations — to refrain from discriminating against anyone in the protected categories (such conduct was already barred in NAR’s Code of Ethics). An exhibition of prejudice, even away from work, would call into question an individual’s ability to refrain from discrimination at work. “Employees who post hateful and discriminatory content are not just being unprofessional: At best, they expose their employer to a loss of business and goodwill; at worst, they are putting themselves and their employer at risk of a lawsuit, whether it’s under the Fair Housing Act, or the Civil Rights Act, or any other law that forbids discriminatory conduct,” Gwinn said.
Although social media allow people with similar views to exchange ideas, Gwinn advises everyone — not just realtors — to be cautious about what they say online. Social media is public, he said. Many employers and organizations now check applicants’ social media posts before hiring or accepting them as members. Lawyers caution, however, that such reviews might reveal facts about an applicant, such as disability, religion or gender orientation, an employer might not otherwise know, and expose the employer to a charge of discrimination if the candidate is not hired. “The bottom line is, if you wouldn’t be comfortable saying something to your employer in person, don’t say it online,” Gwinn said.
For more about social media and free speech, check out Daniel Gwinn’s recent appearance with California podcaster and attorney Ian McFarren, in an episode of “Lockdown Law,” available on Spotify.
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By: Daniel A. Gwinn, Esq
Attorney and Counselor at Law
GWINN LEGAL PLLC
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Troy, MI 48084
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