Current events in the political landscape, particularly south of the border, are stirring up highly charged debate and prompting controversial rhetoric in both the public and private sphere. Whether the topic is National Football League players kneeling during the American national anthem or the rise of the so-called alt-right movement, many people choose to publicly express their opinions, no matter how vile or offensive, using their personal social media accounts. President Donald Trump might be able to get away with his controversial tweets, but what about your employees?
Employers have a duty to maintain a safe, harassment and discrimination-free work environment. Employers therefore have not only a right but an obligation to ensure that discourse within the workplace is appropriate and inclusive. But is there anything they can do about the racist or sexist comments employees might post in their personal time?
Employers might be tempted to monitor the online activities of their employees and discipline or terminate employees for the statements they post online while off duty, but they should do so with caution. The law protects the expression of political beliefs and requires that a balance be drawn between employers’ right to manage the workplace and employees’ right to privacy in their personal life.
As a general rule, employers have no business policing an employee’s off-duty conduct, unless there is a clear connection or “nexus” with the workplace.
In order to terminate employees for what they post online using their personal social media accounts, an employer will have to establish a nexus by demonstrating that the racist, offensive or otherwise inappropriate commentary:
•impacts the employer’s reputation or product;
•impairs the employer’s ability to operate;
•renders the employee unable or unfit to perform his or her duties;
•causes other employees to be reluctant to work with him/her; or
•constitutes a serious criminal offence, such that it injures the general reputation of the company and its employees.
For example, while an employer might not be able to discipline or dismiss an employee making offensive comments to his small group of Instagram followers, if that same employee is the public face of the company or publicly identifies himself on his account as an employee of the company, those offensive comments could cause reputational damage to the employer and create the necessary nexus between his off-duty conduct and his employment.
It is also important to note that apart from charter protections on free speech and the moral implications of supervising or censuring the opinions of your employees, the British Columbia Human Rights Code protects employees from discrimination on the basis of their “political beliefs.” The definition of what constitutes a protected political belief has broadened of late, and it includes not only association with traditional partisan politics, beliefs about modes of social co-operation and beliefs in trade unionism, but also any beliefs and activities that “engage public discourse on matters that could be the subject of government action.”
In Bratzer vs. Victoria Police Department (No. 3), 2016 BCHRT 50, the complainant was a police officer.
He was also the spokesman for an organization that advocated the legalization and regulation of illicit drugs. His department tried to prevent him from speaking publicly about his views and participating in certain advocacy events. Bratzer claimed that he was discriminated against on the basis of his political beliefs.
The Human Rights Tribunal agreed.
There was no evidence of any unwillingness to enforce existing drug laws or actual harm done to the department. Despite the apparent conflict between his duty of loyalty as a police officer and his public opposition to the laws he was required to enforce, his views were protected, and the employer’s attempts to limit his activities in that regard were discriminatory.
Bratzer was awarded $20,000 in damages for injury to dignity, feelings and self-respect.
Thus, even where an employer can establish a nexus between the workplace and the views that an employee has expressed online, it still must consider whether those views constitute protected “political beliefs” such that terminating the employee, whether with or without cause, would constitute a violation of the employee’s human rights.
An employer has the right to protect its business and reputation by dismissing an employee who threatens its interests with his or her off-duty online activities (so long as it does not violate that employee’s human rights in doing so).
But whether that employer can terminate the employee for cause and avoid severance liability for such a dismissal depends on the circumstances, including the severity of the employee’s misconduct in the context of his or her employment history and the degree of impact of that online conduct on the company.
While you may disagree with the opinions of your employees, it is worth getting legal advice before you part ways with those employees for expressing their views. •
Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP. This article is for general information purposes only and does not constitute legal advice.
