On June 18, 2013, the Human Rights Tribunal of Ontario released a decision on ethnic origin. In Oscar Perez-Moreno and Danielle Kulczycki, it wasn’t just words or behaviour made by someone at work in the ordinary course – it involved Facebook postings by an employee about her manager. Need another twist to hold your attention? The manager was the one who made the human rights application.
The decision notes the following facts. The manager (“Oscar”) at a golf resort intervened in an argument at work between the respondent (“Danielle”) and another individual with whom Oscar was in a relationship. Two days later, Danielle posted on Facebook that she had been written up at work for calling Oscar “a dirty Mexican”. Reportedly, Danielle told other employees “now that Mexican is not going to give me anything”. Oscar found out about Danielle’s Facebook posting and her derogatory comments. He said that he found them humiliating, damaging to his character, work and personal life, and that they created a negative emotional, social, mental and possible financial effect on him. He reported that his son’s classmate asked whether Danielle’s Facebook post was about his father. Oscar said he felt humiliated and ashamed because of Danielle’s comments. Danielle did not attend the hearing.
The adjudicator essentially found it a slam dunk case in five pages worth reading:
 In Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1392 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.
Oscar lost on remedy. He wanted the Tribunal to order the respondent out of the workplace, but the adjudicator said the Tribunal’s very broad remedial power did not extend to that kind of order because the employer was not a party. Instead, the adjudicator ordered Danielle to complete an on-line “Human Rights 101” training course provided by the Ontario Human Rights Commission. The adjudicator also ordered that a copy of the decision be provided to the employer “who may wish to consider whether human rights training might be of benefit for all its employees”.
What does this case mean?
This decision is the first of its kind to conclude that statements and actions communicated on Facebook constitute harassment based on a protected ground in employment (i.e., were workplace-related). That’s not all. It is also unique as it involved workplace activities between two employees and not between an employer and employee. Will we see more of this kind of complaint. Likely “yes” on workplace-related postings on the internet. Too early to say “no” on the employee v. employee issue.
One thing seems very clear. As Canadian workplaces become increasingly and necessarily populated by employees with “different” ancestry and ethnicity, employers will want to take steps to ensure that “difference” is accepted without negative and hurtful prejudice or stereotyping. If you haven’t already, now is the time to consider your human rights policies and ensure that employees are aware of them and what is or is not acceptable behaviour.