Are Blog Posts "Workplace Conduct"?

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).

Facts

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.

Competing Rights

The Ontario Human Rights Code prohibits discrimination “with respect to employment” and “in the workplace” as follows:

Employment

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”:

[25]  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.

[26]  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:

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a)

freedom of conscience and religion;

(b)

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)

freedom of peaceful assembly; and

(d)

freedom of association.

            [emphasis added]

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.

 

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Freedom of Speech in the Workplace

Today the Supreme Court of Canada will hear a highly anticipated case on Canada's freedom of religion and speech laws.  The case involves Bill Whatcott and his passionate, public promotion of anti-gay and anti-abortion views, all in the name of his religion. 

Kirk Makin provides a good summary in today's Globe and Mail.

Whatcott's Case

A prostitute in his youth, Whatcott found religion and, apparently, also found a hateful perspective on some of the issues that tend to push the buttons of Canadians.  In 2005, the Saskatchewan Human Rights Tribunal ordered Whatcott to pay $17,500 to four individuals after he put anti-gay leaflets in their mailboxes.  In February 2010, the Tribunal's decision was overturned, and today, the parties will make their arguments to the SCC.

The case will turn on whether Whatcott's flyers contravened section 14 of the Saskatchewan Human Rights Code:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject. 

Clear as mud:  you cannot publish or display anything hateful to another person's dignity, but nothing in the provision restricts the right of freedom of expression.

Freedom of Expression

So do Canadians have the right to say hateful things?  While the US speaks of "free speech" as a religion in of itself, in our land of the Charter of Rights and Freedoms, we can say anything we want, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". 

Clearly a PR firm did not write our Charter, but it does provide a more sophisticated, albeit complicated approach to the issue of free speech.  This is not, and never will be, a black and white issue.  As a society, we want to deal with discrimination and hateful comments effectively.  However, although I may think Whatcott has archaic and ridiculous views about being gay or a woman's right to make choices about her own body , I do feel uncomfortable shutting him down completely - that really is a legal dictatorship that relies on mortal law makers getting it right in the first place.

Freedom of Speech in the Workplace

Having said that, I do believe that placing some limits on free speech in the workplace makes sense.  Employees come to work and require a space to thrive, and to keep the company productive.  Unlike the choices we can make outside of the workplace, an employee cannot escape, or choose to sit at a different table at the restaurant client meeting, or choose a different co-worker to share an office with, or decide to not interact with a department that promotes hateful comments about him or her. 

The workplace is a confined space, a micro-environment, that requires a common workplace culture to promote employee buy-in and sense of belonging, to keep everyone productive.  If your employees have nutty views - or hateful views - on the big ticket issues, the workplace is not the venue to push the envelope on freedom of speech.

Workplace policies, having your managers lead by example, openly supporting employees you see may be targets of intolerant comments and behaviours are all common sense necessities to balance our society's right to free speech in the workplace.

Have you had any recent experience with "free speech" issues in the workplace?  Have you run across any innovative ways to deal with it?  I'd love to hear from you.

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