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Texts as Evidence in Human Rights Cases

Ever sent a quick text to someone without really thinking too carefully about the implications of what you are saying?

It is now commonplace for text messages to be entered as evidence in legal

Everything you text can become evidence in a legal proceeding

Everything you text can become evidence in a legal proceeding

proceedings.  I was flipping through recent decisions of the Ontario Human Rights Tribunal and found two recent cases in which text messages formed key evidence in the complaint.

Texting Racist Comments

The first one demonstrates the pure stupidity of some people who own smart phones and are in positions of authority at workplaces.  Employers might want to impose a ‘no texting about employer issues’ rule if they employ racist geniuses like the guy in Bouraoui v. Ottawa Valley Cleaning & Restoration.

Bouraoui submitted a job application and received a quick call from a genius manager named Jessie, who proceeded to ask him where he was from and whether he was black!  Genius Jesse then told the applicant he would text him the decision on whether he’d be hired.  Here is the text he sent:

Jesse: Try learning English you will have better luck I don’t hire foreners I keep the white man working

When Bouraoui then noted it is illegal to say you only hire the white man, genius sent another text:

 Jesse: I didn’t say anything that is racist all I sad was I don’t hire foreners and I hire white men so stop texting me take it how ever you want if you text me again it will be hearasment and there is no law for what I said it’s called freedom of speech in Canada maybe you would know that if you were a Canadian good by stop wasting my time I run a business I don’t have for you get a life

Geez, tough one this.  The Tribunal accepted into evidence the entire text exchange in which genius says he only hires white people who speak proper English (like him).  A clear violation of Section 5 (discrimination in employment on basis of skin colour, race, ethnicity, place of origin), and Section 23 (making inquiries in a job interview about any of the prohibited grounds).

The employer was ordered to pay Bouraoui $8000 as compensation for injury to dignity, feelings, and self-respect, and all owners and managers are required to take the Human Rights 101 course (http://www.ohrc.on.ca/hr101/).   Then there is the priceless value of the negative media coverage, though I guess it’s possible that Ottawa Valley Cleaning & Restoration will tap into the racist market for carpet cleaning.

Dishonest Texts Can Create All Sorts of Legal Problems

In the second decision (Baker v. Twiggs Coffee Roasters)  a coworker (Cara) sent a series of texts to an employee (Baker) stating that Baker was being fired because the employer learned she’s pregnant.  Baker sent a text asking Cara if Cara had told the boss (Laura) that Baker was pregnant.  Cara sent the following text in response:

Hey i did and I feel really bad but laura is worried its not gonna work… im so sorry tamra I really wanted to help ya but she was just concerned when u do get bigger its gonna be hard to do a lot of the work here. Please dont hate me!! I feel tireable

Baker was fired in that case after only 15 days of work.  The employer said is was due to her poor performance.  However, understandibly, after receiving this text, Baker believed she’d been fired because the employer learned she was pregnant.  Baker filed a human rights complaint alleging discrimination on the basis of pregnancy  (Section 5 and 10(2).

If that text was truthful, the employer would lose this case.  Therefore, the truthfulness of the text became the central issue in the hearing.  Clara, the sender of the text, testified that she was lying in the text to protect Baker, as the Tribunal summarized:

Cara says what she wrote in this text is not true. She says she lied to the applicant about the reason for her termination because she believed it would be less upsetting to the applicant to think it was because of her pregnancy instead of her job performance.

The Tribunal believed the employer’s evidence that it did not learn about Baker’s pregnancy until after the decision to dismiss her for performance problems had been made.  The text indicating otherwise was a lie.  A lie that resulted in a stressful hearing and strained relationships between all of the women involved.  The Tribunal noted that Clara (the lying texter) might have been guilty of sexual harassment herself for pretending that she had told the employer that Baker was pregnant when she was not, and for then dishonestly informing Baker that she was fired for pregnancy.  However, Baker had not filed a complaint against Clara.  The case against the employer was dismissed.

Issues for Discussion

1.   Do you think that people appreciate the possible legal ramifications of their texts less than they would a verbal discussion or email exchange?

2.  Should employers implement a ‘no texting about work issues’ rule for managers?

3.  Should courts and human rights tribunals admit texts as evidence in legal proceedings?

 

 

 

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