By Jessica Young
The use of social media by employees, and its potential impact on the workplace, continues to be an important topic for HR professionals. Most employees will engage in some kind of social media, whether it is on Facebook, Instagram, Twitter, a blog or some other form.
Although employee social media posts can have an impact on the workplace, which can result in employer liability, there are limits to this liability, as illustrated in a recent decision from the Ontario Court of Appeal. The court had to consider whether statements made by a union representative outside of work hours on an online forum constituted conduct “with respect to employment” that would trigger protection under the Ontario Human Rights Code.
Human Rights Tribunal Decision
The applicant, a manager at a Toronto jail, alleged that comments on a public blog made by an employee, who was also the local union president, discriminated against her based on her sex and family status.
The local union president’s blog was created during collective bargaining negotiations. The disputed blog posts criticized the applicant for failing to act quickly when there was a work refusal, and suggested that she obtained her position through nepotism. The post suggested that she obtained her job due to her personal relationship with another member of management, who was her common-law spouse. It also commented that if she didn’t know the answer to something she should “call [her] boyfriend.”
The local union president was not disciplined for his blogging activity. The union and the employer had agreed that there would be no discipline for any blog posts made during collective bargaining negotiations. The applicant had filed an internal workplace discrimination and harassment complaint, which was not pursued due to this agreement.
The Ontario Human Rights Tribunal noted that work-related postings made online could violate the Human Rights Code, and that employers can discipline employees for actions taken on online forums. In this case, the tribunal found that the comments were sexist and projected stereotypes about women “sleeping their way to the top” and getting ahead by relying on their more-competent male partners. However, the tribunal did not find that these posts constituted discrimination with respect to employment.
The tribunal looked to the context of the comments, finding that they were made by the local union president on a union blog and dealt with union-management relations. The applicant was a member of management, and the tribunal found that although some of the comments were sexist, they were made in the course of the union president’s role as a union representative, not in his role as an employee, and that such communications were protected under the Canadian Charter of Rights and Freedoms. Specifically, the tribunal focused on the charter protections for freedom of expression and freedom of association. The tribunal also looked at the impact of the comments on the applicant, finding that her primary concern was that her personal life was being brought into the workplace, and not the sexist stereotypes in the blog post. The tribunal also found that there was an absence of any code-based effects in the workplace.
Court of Appeal Decision
The tribunal’s decision was upheld on judicial review to the divisional court, which was subsequently appealed to the Ontario Court of Appeal. The court of appeal found that the tribunal’s decision was reasonable and dismissed the appeal.
The main argument at the court of appeal pertained to whether the tribunal was entitled to consider Canadian Charter of Rights and Freedoms values as a factor in its analysis as to whether there was discrimination with respect to employment pursuant to the Human Rights Code. The court of appeal reasoned that the tribunal was permitted to consider charter values in its analysis.
The court of appeal then considered whether the tribunal properly balanced relevant charter values with the objective of the Human Rights Code. The court of appeal did not disturb the tribunal’s findings. It found nothing unreasonable with the tribunal’s conclusion that although the comments were sexist and distasteful, they were made in the context of labor negations by a union representative, and were encompassed under the broad protection afforded by freedom of expression as well as associational rights.
Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.
Professional Pointer: This case is unlikely to serve as a precedent for shielding employees from liability for inappropriate social media comments. The fact that the employee was acting in his capacity as a union representative, thus triggering the charter protection, and the fact that there was no evidence of code-based effects in the workplace were significant factors in the decision. The applicant in this case did not name her employer as a respondent. However, comments made by employees on social media sites that have an impact on the workplace could lead to liability for employers. HR professionals need to ensure that clear policies are in place outlining the expectations on employees with respect to social media use, and that employees who violate these policies are disciplined accordingly.
Jessica Young is a lawyer with the firm of Stringer LLP, the Worklaw® Network member in Toronto.