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 Tribunal (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?