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Racist Facebook Comments About Co-Worker Violate Human Rights Code

When Danielle Kulczycki posted on her Facebook page that she had been disciplined at work for calling her supervisor a “dirty Mexican”, she may have have believed, wrongly, that she was making private statements.  The supervisor learned of the posting, and filed a human rights complaint against Kulczycki alleging unlawful harassment in employment on the basis of race, origin, ancestry, and citizenship (Human Rights Code, Section 5(2)).  In this case, the respondent (Kulczycki) elected not to participate in the hearing, so the Tribunal assumed all of the allegations in the complaint were true.

There’s three noteworthy aspects of the decision that results, released last week by the Ontario Human Rights HR-tribunal3-150x137Tribunal (Perez-Moreno v. Kulczycki).  The first is that this is an employment harassment case in which the employer is not a party.  The complainant is alleging that a coworker engaged in unlawful harassment. Look at Section 5(2):

 Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Can you see how that language includes harassment as between employees?  What do you think is the effect of the words “in the workplace” when applied to a Facebook posting?

The second noteworthy issue was the main component of the harassment was a Facebook post.  The Tribunal ruled that the Code governs Internet postings made about coworkers, and that Kulczycki’s ‘dirty Mexican” post violated Section 5(2):

 In Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1392 (CanLII), 2012 HRTO 1392 [the Tribunal found] that the Code“may apply to workplace-related postings on the internet”.  I agree.  I find the respondent’s statements and actions in communicating them on Facebook amount to harassment in employment contrary to the Code.  The comments clearly were vexatious and related to an incident that occurred in the workplace.  The respondent knew or ought reasonably to have known her comments were unwelcome to the applicant. 

The final point of note relates to the remedy.  The complainant had not sought monetary damages, but requested that the harasser  ”be removed from their shared workplace”.  The Tribunal noted that it has very broad remedial power in Section 45.2(1).  However, it found that it could not order the employee removed, because that remedy would affect the employer’s interests, and the employer was not a party to the complaint.  Instead, the Tribunal ordered the guilty employee to take an on-line human rights training courses called “Human Rights 101″:

Given the seriousness of the respondent’s conduct, and the applicant’s humiliation and his real concern about how the respondent treats people of different nationalities and cultures, I find it appropriate to order the respondent to complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of this Decision.  The respondent will provide the applicant with written confirmation that she has done so upon completion of the course.

 Issues for Discussion

Do you agree that what employees write on their Facebook pages when they are on their free time should be considered “harassment in the workplace” within the meaning of Section 5?

What do you think of the remedy ordered in this case?  It is intended to serve an educational purpose, but do you think it serves as an effective deterrent to harassing behaviour?  

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5 Responses to Racist Facebook Comments About Co-Worker Violate Human Rights Code

  1. Fernando Reis Reply

    June 25, 2013 at 8:49 pm

    In a unionized context, arbitrators have treated inappropriate comments on social media as a serious matter. Social media is considered an extension of the workplace. If two workers engage in a physical fight off the work site, the activity may be subject to disciplinary action (depending on the facts, of course). Therefore, workers need to be careful of what they say on social media. I consider the remedy within the range of appropriate responses and should serve as a specific and general deterrent. A monetary remedy in this case would be purely punitive. However, I am not sure whether the fact the Respondent did not particpate in the hearing should have merited a more onerous remedy.

  2. Richard Reply

    June 26, 2013 at 12:50 pm

    How about the fact that when the complainant decided not participate, all of the allegations were taken to be true?!

  3. John Reply

    July 9, 2013 at 6:01 am

    It’s remarkable that a single comment on a Facebook page can constitute “harassment” for purposes of the Code. That would seem to be inconsistent with the Charter right to freedom of expression.

    I also wonder whether the Commission really wants to be inundated with complaints and counter complaints from bickering co-workers.

  4. Chikapin Reply

    September 4, 2013 at 1:58 pm

    I personally think that’s crap!
    What a person does outside if the workplace has no
    Relation to at work.

    If we work together and scrap at work.. There should be discipline.
    But outside work, the company has no say over their employees lives.
    Will they tell you how to think and or how you can live your life?
    If so, then you have stopped being an employee and are now a slave.

  5. Nadine Reply

    January 11, 2014 at 12:51 am

    I absolutely agree that what employee’s post online via social media or otherwise when it impacts the workplace (comments about managers, fellow employees, etc.) should be considered allegations of workplace harassment and appropriately investigated as such. If it impacts the workplace, its potentially workplace harassment. Plain and simple.

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