August 19, 2014

Derogatory Facebook Post Violation of Human Rights

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In Perez-Moreno v Kulczycki, 2013 OHRTD No 1080, Perez-Moreno, filed an application under the Ontario Human Rights Code (the “Code”) against that his co-worker, alleging harassment in the workplace on the basis of race, ancestry, place of origin, citizenship and ethnic origin.  Interestingly, Perez-Moreno did not also name his employer, the Cranberry Golf Resort located in Collingwood Ontario, in the action.

Kulczycki posted on Facebook that she had been written up at work for calling Perez-Moreno “a dirty Mexican.” This post occurred after Perez-Moreno, Kulczycki’s manager, had intervened in an argument between her and another individual at work.  Kulczycki stated to other employees that “now that Mexican is not going to give me anything.” The OHRT found that the statements of Kulczycki amounted to harassment in the workplace which violated the Code.

Perez-Moreno did not seek monetary damages but asked the Ontario Human Rights Tribunal (OHRT) to remove Kulczycki from their shared workplace.  Although the OHRT’s remedial authority is quite broad, it did not extend to the order sought in this case. However, given the seriousness of Kulczycki’s conduct, the OHRT ordered her to complete the Ontario Human Rights Commission’s online training entitled “Human Rights 101” within 30 days of this decision.  The OHRT also provided a copy of the decision to the employer, a non-party to the action, to consider whether human rights training might be beneficial in the workplace.   

It is clear from this decision and the growing jurisprudence in the realm of social media that workplace-related postings on social media are captured by human rights legislation where they amount to harassment in employment. This decision should serve as a reminder to employers, who can be held vicariously liable for the conduct of their employees, to ensure that employees are made aware that their conduct online can result in a human rights complaint in the workplace.

For more information, please contact Ashley Wakeham Savinov at coxandpalmer.com.


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