Racist Facebook comment about co-worker: Employees can be liable for actions outside the office

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Can what you say on Facebook hurt your job?  (Photo credit: Wikipedia)

There was recently a case about an employee who posted racists comments about her co-worker on her Facebook profile that we thought was interesting because it raises the question: can one employee hold a co-worker accountable for the things they say or do on social media?

On August 1, 2012, Oscar Perez-Moreno, a manager at a golf resort, intervened between an argument that his co-worker, Danielle Kulczycki, was having with another colleague.  Two days later, Danielle posted on Facebook that she had been written up at work for calling Oscar “a dirty Mexican”.  Danielle had also told other employees: “now that Mexican is not going to give me anything”.

Oscar found Danielle’s Facebook post and found her derogatory comments humiliating and damaging to his character, work and personal life. He said that they created a negative emotional, social, mental and possibly financial effect on him.  The news had even reached his son’s classmate, who asked his son if Danielle’s post referred to his father.  Oscar felt that he should not have to feel ashamed of his roots. He started an action against Danielle through the Ontario Human Rights Tribunal.

The Ontario Human Rights Code prohibits harassment in the workplace on the basis of race, origin, ancestry and citizenship. Section 10(1) defines harassment as, “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

The Tribunal agreed with Oscar that he had been subject to discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin, and said that Danielle’s Facebook post and additional comments directly went against the Ontario Human Rights Code.

Ultimately, the Tribunal ordered that Danielle complete the Ontario Human Rights Commission’s on-line training: “Human Rights 101” within 30 days of the decision being released.

Two important employment law issues stand out in this case:

First, Oscar did not bring the complaint against their employer, the golf resort, but rather named his co-worker Danielle, an employee of the golf resort, personally.  Employees should take note that they may be held accountable for their conduct outside of the workplace, such as on Facebook and other social media sites.

Second, Oscar did not ask for monetary compensation – what he really wanted was that Danielle be fired. While the Tribunal said that it did not have the power to order that Danielle be fired (particularly because it might affect the golf resort, which was not named in the action), the Tribunal did indicate that it was not averse to the idea of awarding damages against an employee for conduct like that of Danielle’s.

To read the full decision, click here.

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

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