Last week, the Human Rights Tribunal released a very interesting decision in which discriminatory comments made by a union president on the union’s blog raised the issue of competing human rights – namely the right to be free from discrimination in the workplace vs the right to freedom of expression and association: Taylor-Baptiste v. Ontario Public Service Employees Union
The case turned on two issues:
(i) whether the union president’s blog posts were work-related and captured by the Human Rights Code’s right to be free from discrimination “in the workplace” and/or “in respect of employment” (they were not); and
(ii) whether the union’s right to freedom of expression and association trumped the manager’s right to freedom from discrimination (yes, it did in this context).
In this case, a female manager claimed that the union’s president was posting discriminatory comments about her on the union’s blog. There was no dispute in the decision that the comments were discriminatory: references to her sleeping to the top, having “intimate knowledge of another deputy”, suggestions that the manager had only obtained her position through sex, and that if she didn’t know the answer to something so simple, she should call her “boyfriend” over at his office.
The comments were made on the blog during heated collective bargaining in the fall of 2008. The union president states that the purpose of the blog was to communicate to the union membership, particularly in light of the ongoing negotiations. It was apparently a widely read blog in the workplace.
The union argued that the comments on the blog were not “in the workplace”, while the manager argued that the blog was an extension of the workplace, and that social media are integrally woven into the fabric of the modern workplace.
The Ontario Human Rights Code prohibits discrimination “with respect to employment” and “in the workplace” as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability
Harassment in Employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
[emphasis added; provisions are as amended since the case was heard]
It is important to note that the manager filed the claim against the union and the union president only. The employer was not named. This impacted the analysis as to whether discrimination occurred “with respect to employment” and/or “in the workplace”.
Were the Blog Posts “In the Workplace”?
In deciding upon the application of section 5(2), the adjudicator, David Wright, concluded that the blog posts were not conduct “in the workplace”:
 I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet. It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.
 However, I agree with the respondents that in the circumstances of this case, the blog comments themselves were not harassment “in the workplace” under s. 5(2). They were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership. There is no evidence that Mr. Dvorak made the postings while at work for the employer. There may be circumstances in which postings in cyberspace are sufficiently connected that they are “in the workplace”. However, even giving them a broad interpretation, the words of s. 5(2) cannot apply to this blog, given the context.
There are plenty of examples where online conduct, such as comments on Facebook or a blog, gets pulled into the workplace as a disciplinary offence. In this case, however, the adjudicator allowed the employee to wear two different hats, and contextualized the comments accordingly.
Thus, while wearing his union president hat, the respondent could post on the union blog comments that were directed to union members. Whether or not the comments were discriminatory or harassing, the comments were not made “in the workplace” and so not captured by section 5(2) of the Code. This was so, despite the union president being an employee in the same workplace as the manager about whom he was blogging discriminatory comments.
Were the Blog Posts “In Respect of Employment”?
Section 5(1) of the Code has a broader application. It will capture issues around a generally poisoned workplace, not just specifically targeted conduct. In this case, because the manager did not name the employer (i.e. the party who had the primary power to address a poisoned workplace), the analysis became limited to the union and its president’s responsibility and liability.
Ultimately, the adjudicator held that the comments were made in the course of the blogger’s duties as the local union president, and that his comments on management were protected by the Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
freedom of association.
The comments were limited to a couple of posts within one month, in the midst of a large volume of other posts about the ongoing bargaining. The manager was unable to prove that the online comments had specific reverberations in the workplace, although the manager pointed out her resulting stress and use of the employee assistance plan.
This case pits the manager’s right to freedom from discrimination against the union president’s right to freedom of expression.
In resolving these competing interests, the adjudicator looked to the nature of the comments themselves, finding that they focused on labour-management issues such as genuine concerns around nepotism and updates on the contract negotiations in play at the time, albeit using sexist language while doing so. The adjudicator held that the comments were:
“analogous to comments on labour-management issues made at a union meeting or a union newsletter. Comments on such issues are at the core of the constitutional protections of freedom of association and expression and the union’s right to operate independently of the employer.”
The blog comments were characterized as advocacy on behalf of union members by a local union president, and as such, held to be protected by the Charter right to freedom of expression and association (see Ontario (AG) v Fraser, 2011 SCC 20).
In this circumstance, core Charter rights and freedoms trumped over the Code’s rights to freedom from discrimination.
Context Does Matter
People often describe online comments as having the same exposure as an employee shouting out comments in the hallways of the workplace. A public comment is a public comment. This is apparently not the case, and context really will matter.
While post-modern Gen-Yers who continue to carve out their online rights will no doubt roll their eyes and sigh, “Duh!”, the rest of us over 35 will be a little surprised that discriminatory comment about a manager posted on a public blog is okay.
Social media continues to push the envelope on what is appropriate “public” commentary, what is workplace conduct, and what is personal vs professional. This decision moves the discussion forward on what is protected online free speech for unions.