Taylor-Baptiste v OPSEU, 2012, HRTO 1392
The complainant in this case is the deputy superintendent of programs at the Toronto jail and the respondent is a unionized employee as well as the local union president. During collective bargaining in 2008, the respondent had a blog whose goal was to communicate progress made in the bargaining process. Following a hostile meeting with the complainant, the respondent made an angry entry on the blog targeting her name, her marital status and her gender. The blog stated that the manager was hired only because she was in a sexual relationship with another employee, her husband, and that she was incompetent.
When management found out about this entry, they ordered the respondent to take down the post. He refused, and created another post indicating that management had threatened to take action against him on the grounds that he had breached the OHSC (bill 168). Eventually, as part of the collective bargaining process, the OHSC complaint was withdrawn.
The complainant was dissatisfied with the resolution of her complaint. She filed a complaint with the Tribunal which asked itself
- Can employers discipline employees for actions they take in cyberspace?
- Did the comments on the blog amount to harassment under Section 5 (2)?
- Did the comments on the blog amount to harassment under Section 5 (1)?
- Does this decision preclude arguments that blog posts in other contexts could fall under s. 5 (1)?
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, age, record of offenses, marital status, family status or disability.
5 (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent or the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or disability.
- “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 then. (25)
- “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 road interpretation, the words of s. 56 (2) cannot apply to this blog, given the context. “ (26)
- “Considering all these circumstances, I conclude that Mr. Dvorak did not discriminate against the applicant with respect to employment. His postings were made on issues of union-management concern, and while they relied upon sexist language, they were not gratuitous attacks unrelated to union business. There were no Code-based reverberations in the workplace and the applicants’ principal concern was about the bringing of her personal life into the workplace. The applicant, as a manager, is a person with relative power in the workplace relationship with employees. Most important, union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association, and close to the core of those rights. Taking all this into account, I find that the respondents did not discriminate against the applicant with respect to employment.”
- Of course, this conclusion does not mean that I have found that the blog posts in question were acceptable, nor does it negate the hurt they caused Ms. Taylor-Baptiste. On the contrary, the wording of these posts was inappropriate and, in my view, harmful to good labour relations. (41) I also emphasize that this decision is not intended to preclude arguments that blog posts in other contexts could fall under s. 5 (1), or that expressions of union opinion could constitute discrimination in other circumstances. Most significant to my decision in this case are that the postings were tied to communication to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace. (42)
- Factors to consider:
- the seriousness of the conduct
- i. While there was only one blog and one response to that blog, the open access to the comments for one month increase the seriousness of the conduct (36)
- their significance
- i. there were sexist comments that were derogatory and demeaning but there were also comments about marital status, incompetence and nepotism that did not amount to a violation of the code.
- their effect on the workplace
- i. People at work commented to her about reading about her in the blog and she sensed that people were looking at her knowingly, as a result of reading the blog. The tribunal said, however, that managers should be expected to be at the receiving end of negative critiques by the union. This lowered the impact of the effect of the sexist language in the workplace.
- the role of the person making them
- i. the role of the respondent in the restoration process of a workplace poisoned by racism makes his conduct even more serious (35)
- ii. his role as union president on a union blog talking about bona fide concerns (nepotism, incompetence) decreases the seriousness of the conduct
- the effect on the applicant
- i. Her main concern was how her personal life had been dragged into the workplace, not with the sexist comments (38).
- the reaction of the respondent to any concerns raised
- i. the reaction of the respondent was to “belittle the concerns, attacking management, and suggesting that his actions were justified because of alleged mistreatment of the union and its membership by the employer” (35) He failed to consider or address at that time the ways in which his posts could violate the Code or hurt individuals” (35)
- the balancing of the rights (the right to freedom from discrimination and the right to free expression)
- the frequency of events - one blog, one response. Accessible to the public for a month
After reviewing these factors in regards to this case, the tribunal found that the blog comments amounted to discrimination.
Comments which didnot amount to discrimination:
1) The simple mention of the applicant’s marital status was not in and of itself discrimination: “It would clearly not have been a violation of the Code for Mr. Dvorak, without using language that is humiliating and denigrating, to mention the applicant’s relationship with Mr. Gray in the context of raising concerns about nepotism, or to post a comment identifying her ex-spouse, who shares her last name” (31)
2) The comments about the applicant’s incompetency or failure to perform well were not, in and of themselves, discrimination: “it was not a violation of the Code for Mr. Dvorak to suggest, whether fairly or not, that Ms. Taylor-Baptiste had not handled this situation well, or to make comments about her competence as a manager. It also would not be a violation of the Code merely to contrast her competence or dedication to union principles with those of other managers”
Comments which didamount to discrimination
3) “What is of concern about the comments is the use of sexist language to convey the point about nepotism. Mr Dvorak drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” through suggesting that her qualification for the job was “intimate knowledge of another deputy. This was not merely a comment about nepotism, but about the sexual relationship between her and her spouse, suggesting that she had obtained her position through sex. Similarly, the comment, “if you don’t know the answers to something this simple Ms. Baptists maybe your should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent “boyfriends”” (33)
4) The posting of the comment from the anonymous poster that Mr. Taylor-Baptiste was besmirching the good union name of her former spouse also raises issues of sexism. It may be read as suggesting that, because she married and took the name of Mr. Taylor-Baptiste, she is expected to adopt his values, including those of support for trade unionism, or disassociate herself from them by changing her name. This issue and suggestion targets her as a w2oman because it was traditionally women who were expected to change their names upon marriage. This is an issue of gender and it singles her out as a woman. (34).