Racial discriminationIn Perez-Moreno v Kulczycki, Vice-Chair Kershaw of the Ontario Human Rights Tribunal held that the Respondent’s Facebook posting constituted discrimination contrary to the Ontario Human Rights Code.

Facts

On 1 August 2012, Perez-Moreno intervened in an argument at work between Kulczycki, a co-worker, and an individual with whom Perez-Moreno was in a relationship.

Vice-Chair Kershaw found that, on 3 August 2012, the Kulczycki referred to the Perez-Moreno as a “dirty Mexican.” In addition, Kulczycki was found to have told other employees, “now that Mexican (sic) is not going to give me anything.”

Perez-Moreno argued that Kulczycki’s posting and comments were derogatory, humiliating and damaging to his character, work and personal life and he claimed that they had a negative emotional, social and mental effect upon him.

Allegation

Perez-Moreno alleged that Kulczycki’s posting and comments constituted discrimination on the basis of race, origin, ancestry and citizenship contrary to Section 5(2) of the Ontario Human Rights Code.

Analysis

Vice-Chair Kershaw found that Kulczycki’s posting and comments were vexatious and constituted harassment within the meaning Section 10(1) of the Ontario Human Rights Code, which defines harassment as “a course of vexatious comment or conduct that is known or ought reasonably be known to be unwelcome,” on the basis of race, place of origin, ancestry and citizenship.  The Vice-Chair held that Kulczycki’s conduct constituted unlawful discrimination in the employment since it related to an incident that occurred in the workplace.

Vice-Chair Kershaw ordered Kulczycki to provide proof within 30 days that she had completed the Ontario Human Rights Commission’s on-line training course, “Human Rights 101.” She also directed Perez-Moreno and Kulczycki’s employer to consider whether human rights training may benefit all if its employees.

Discussion

This decision has a couple of unusual aspects.  First, it involves a human rights discrimination case between two co-workers; rather than the more usual employee-employer type of complaint.

Secondly, internet users often believe that their postings are unregulated and beyond the reach of the “long arm of the law”–along the same line of mistaken belief in moto, “What happens in Vegas, stays in Vegas.” This case serves as an important reminder that such beliefs are little more than “false hope.”

Finally, even the employer in this case did not escape “honorable mention” as a result of the less than honorable conduct of its employees.

 

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