Facebook Comments Discriminatory, Violate Human Rights Code

Social Media Use Discriminatory -- woman hand computer computing typing digital tablet silhouette

In Perez-Moreno v. Kulczycki (“Perez-Moreno”), the Ontario Human Rights Tribunal determined that an employee’s comments on her personal Facebook page about her Manager were discriminatory and in violation of the Human Rights Code.

The Complainant, Oscar Perez-Moreno (“Mr. Perez-Moreno”), a Manager at The Cranberry Golf Resort, filed the Application against his co-worker, Danielle Kulczychi (“Ms. Kulczychi”) due to racist comments posted about Mr. Perez-Moreno on Facebook. The comments were posted after Mr. Perez-Moreno intervened in an argument Ms. Kulczychi was having with another co-worker and referenced Mr. Perez-Moreno’s Mexican heritage in a derogatory manner. Mr. Perez-Moreno testified that Ms. Kulczychi’s comments were “humiliating and damaging to his character, work and personal life” and “created a negative emotional, social, mental and possibly financial effect on him.” The negative impact of Ms. Kulczychi’s comments was also felt by Mr. Perez-Moreno’s son who was informed of the discriminatory comments by a classmate.

In rendering a decision in this matter, the Adjudicator confirmed that the Ontario Human Rights Code applies to workplace related postings on the internet, which includes comments made by employees on their personal Facebook pages. The Adjudicator determined that Ms. Kulzychi’s comments amounted to harassment in employment in breach of the Human Rights Code, as the comments were “vexatious and related to an incident that occurred in the workplace” and further, that Ms. Kulczychi “knew or ought reasonably to have known her comments were unwelcome to the applicant.” As Mr. Perez-Moreno did not seek monetary compensation from the Tribunal, but rather that Ms. Kulczychi be removed from the workplace, being a remedy outside of the Tribunal’s authority, the Tribunal instead ordered that Ms. Kulczychi complete the Ontario Human Rights Commission’s online training program, “Human Rights 101” and to provide written conformation to Mr. Perez-Moreno upon completion of the program.

Impact of Decision on Employers

It is interesting to note that Mr. Perez-Moreno did not include the employer as a Respondent along with Ms. Kulczycki. Employers can be held vicariously liable for the actions of their employees even if they have not directly engaged in the misconduct themselves. Employers should ensure that they implement and properly enforce policies and procedures in the workplace, including policies addressing issues of harassment, respect for human rights and proper use of electronic media, both in the workplace and at home, if appropriate. While it may not be possible for employers to monitor the movements of all of their employees through social media, employers should ensure that any issues that are brought to the employer’s attention are properly addressed to remedy the rights of the victimized employee.

Impact of Decision on Employees

Employees should be aware that they have certain protections under Human Rights legislation. Comments made by co-workers or management both during working hours and outside of the workplace may be discriminatory and in violation of Human Rights legislation, thereby entitling the employee to various remedies, both financial and also of a more remedial nature that is more in keeping with preserving the public interest. While there are many benefits to the rise of social media, this has created a new area in which the rights of employees, including Human Rights, can be trampled upon. The good news is that social media, including Facebook, is within the scope of the Ontario Human Rights Code and Applications can be brought by victimized employees against co-workers as well as employers who have made discriminatory comments through social media. Employees should consult with an experienced Employment Law lawyer to discuss whether comments that have been made are discriminatory and the potential remedies available as a result.

Minken Employment Lawyers is your Canadian source for expert Employment Law advice and advocacy on today’s employment law issues. Whether you are an employer or employee, we can help. Contact us to see how.

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