Protected ClassesCreated: 8/9/2016
By Ed Smith
Discrimination is making a distinction in favor of or against, a person based on the group, class, or category (referred to as a protected class) to which that person belongs rather than on individual merit. Discrimination is against the law.
There are seven federally protected classes: Race, Color, National Origin, Religion, Sex, Familial Status and Handicapped.
New York State now has eight additional protected classes: Age, Creed, Sexual Orientation, Military Status, Marital Status, Disability, Domestic Violence Victim Status and added in May, 2016 Gender Identity. “Gender Identity is defined as having or being perceived as having a gender identity, self-image, appearance, behavior or expression, whether or not, that is different from that traditionally associated with the sex assigned to that person at birth. Included in the definition is “Transgender” and “Gender Dysphoria” (a medical condition).”
In addition the amended regulations gave the NYS DOS the right to discipline a licensee that was found to have participated in a discriminatory practice. Penalties may include fines and the suspension or revocation of the agents or broker’s license.
Some cities have additional groups that you may not discriminate against. In New York City the following are protected classes: Partnership Status (Domestic Partners), Alienage or Citizenship Status (one’s citizenship or immigration status), Lawful Source of Income (Social Security, Public Assistance including Section 8) [This is also a protected class in Nassau, Suffolk and Westchester Counties], and Gender Identity (Appearance, Behavior “Different from that traditionally associated with the legal sex assigned to that person at birth.”)
In Connecticut the protected classes are: Age, Mental Disability, Physical Disability, Learning Disability, Marital Status, Ancestry, Gender, Lawful Source of Income, Sexual Orientation, Service Animal Access and Criminal Record (in employment and licensing by the State).
The State of New Jersey protects the following classes: Race, Creed (Religion), Color, National Origin, Age, Ancestry, Nationality, Marital or Domestic Partner, Civil Union Status, Sex (including Pregnancy), Gender Identity or Expression, Disability, Military Service, Affectional or Sexual Orientation, Atypical Cellular or Blood Trait, Genetic Information, Family Status, and Source of Lawful Income or Source of Rent Payments.
As agents we must be careful that we do not inadvertently discriminate by asking questions of individuals about what groups (protected classes) they belong to or assuming a person is a member of a specific group, class or category. Treat all people individually and fairly.
In the real estate industry we sometimes can get caught up with what I will call inadvertent discrimination. Since the tragedies of 9/11 and subsequent terrorist attacks throughout the world there has been an added sensitivity regarding discriminating against ones culture or religion. A culturally diverse customer (or any customer) may consider you discriminating (and possibly sue you) if you do not present to them all the listing you have that fit their requirement. “Why did you not let me bid on that building?” “Why didn’t you show me that building, because I’m ________”. Don’t make decisions for your clients; show them ever property in your market area that fits their criteria of size and budget. Let the customer decide.
Don’t let the customer steer you in the wrong direction. “I only want to locate my business in ____ (that part of town)”; perhaps a specific religious or cultural area. This could be construed as Steering, the illegal funneling of real estate buyers to a particular area based on the desire to keep the makeup of that neighborhood the same or intentionally change it. Steering refers to the illegal practice of real estate agents only showing certain ethnic groups properties located in specific ethnic areas. An example would be showing an Asian businessperson store sites that are only located in Asian communities. Show the customer all properties available in your market area based on their size and budget requirements. Let the customer decide. Also remember customers do sometimes change or expand their criteria.
Occasionally we find that our client is prejudice. “Don’t bring any ______!” “I won’t lease to_______!” The word prejudice refers to prejudgment: unreasonable feelings, opinions, or attitudes, especially of a hostile nature, regarding a racial, religious, or national group. You may have to walk away from this situation. Do not put your reputation and license in jeopardy.
Be aware of Omission Prejudice, “Your Company represented the _____ building, why didn’t you show it to me?” Agents sometimes make decisions for their customers, that property is no good for them, it’s too big, too small, or too expensive, it’s in the wrong area. Show the client everything available in your market area: I like to use the 10/20 rule in showing property. Search all properties that at 10% smaller to 20% larger than the target size. Let the customer decide.
You have a property that recently closed or is currently in contract with a sign on it. A new customer calls on the sign. You must disclose the facts, so you do not appear to be misleading with your advertising. Remember if the property is in contract, unless the owner has directed you, in writing, to stop showing the property, you must show it until it closes. If the new customer decides to make an offer, you need to caution the owner to consult with their attorney because they are in contract, and accepting another offer could have legal consequences.
Communicate with your customers. A lack of communication, even if you have nothing that fits their criteria now, may be misunderstood and taken that you are discriminating against them. Avoid even the appearance of impropriety.