Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Perez-Moreno v. Kulczycki

Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (CanLII) (PDF, 206KB)

Question(s) to be Determined:Whether racist Facebook comments made by en employee about her manager amounted to harassment under the Ontario Human Rights Code (the "Code").

Findings:The Tribunal upheld the complaint as it found that comments made by the employee about her manager over Facebook constituted harassment in employment contrary to subsection 5(2) of the Code.

Reasoning: The Tribunal confirmed that the protections under the Code extend to workplace-related postings on the Internet.

Summary:The employee made racist Facebook comments about her manager. The comments were deemed to amount to harassment in employment contrary to the Code. Consequently, employee was ordered to take human rights training.

This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin. 

On August 3, 2012, the respondent posted on Facebook that she had been written up at work for calling the applicant "a dirty Mexican". 

The applicant found the public posting and the applicant's derogatory comments humiliating and damaging to his character, work and personal life, and stated that they created a negative emotional, social, mental and possibly financial effect on him.  The applicant stated that his son's classmate asked his son if the respondent's post referred to the applicant. He stated he should not have to feel ashamed of his roots. 

Subsection 5(2) of the 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". In Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1392 (CanLII), 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. 

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" 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.