In a recent case the Ontario Human Rights Tribunal (the “Tribunal”) found that a facebook posting about a co-worker’s Mexican heritage was prohibited workplace harassment under the Human Rights Code (the “Code”).
The case
The facts are straightforward. The Applicant, Oscar Perez-Moreno worked at a Golf Resort as a manager. One of the employees who reported to him was the Respondent, Danielle Kulczycki. After being disciplined by Mr. Perez-Moreno, Ms. Kulczycki went on facebook to, presumably, ‘let off some steam’. She posted one comment calling Mr. Perez-Moreno a “dirty Mexican” and also posted the following message to co-workers: “now the Mexican is not going to give me anything”.
As the Respondent did not participate in the hearing, the Tribunal deemed all of the allegations true and accepted by the Respondent. The Tribunal then found that the postings related to a workplace incident and concerned the Applicant’s race, place of origin, ancestry and citizenship. The Tribunal, citing the definition of harassment in the Code, stated that the posting was “vexatious” and that “the respondent knew or ought reasonably to have known her comments were unwelcome”.
As a remedy, the Tribunal ordered that the Respondent undergo human rights training.
“Take-aways” for employers
The Tribunal in this case confirmed a very important principle—postings on the Internet, that relate to the workplace may constitute harassment under the Code. Of course, online postings must still relate to a prohibited ground of discrimination (e.g. race) under the Code. The online postings must also meet the Code’s definition of harassment—they must be “vexatious” and known to be unwelcome (or ought reasonably to be known to be unwelcome). The Tribunal’s case-law demonstrates that this is not a difficult standard to meet (note: before the Ministry of Labour the standard is even easier to meet by a worker given that harassment does not have to be linked to a prohibited ground of discrimination under the Occupational Health and Safety Act).
While the employer was not named in this case, it is important to stress that employers can be held responsible for the harassment of staff, whether that harassment occurs in-person or online. Employees—especially younger ones—will use social media. They will likely “friend” their co-workers on facebook. They will likely do this during working hours. While harassment training is important, this will not be sufficient. Employers should seriously consider a social media policy that bans facebook at the workplace, or, at the very least, prohibit comments (and pictures) relating to the workplace. This will go along way to minimizing the risk of online workplace harassment.
Daniel Pugen
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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