Amid increases in antisemitism and conflict, what workplaces can learn from a defamation lawsuit

Holocaust Remembrance Day (Yom Hashoah), which took place on May 6, 2024, is a day where the Jewish community pauses to deeply reflect on the six million Jewish lives lost at the hands of the Nazis. This solemn day has even more significance this year because of the drastic global increase in antisemitism.

A recent Ontario Superior Court decision, DeLuca v. Foodbenders, 2023 ONSC 6465, brings to light the profound impact of antisemitism and defamation on those it touches. This case underscores the gravity of online behaviour, and while the lawsuit was not between an employer and employee, it’s still a compelling example of the importance of fostering inclusive and respectful workplaces.

The lawsuit involved Shai DeLuca, a vocal Zionist who decades earlier had served in the Israel Defence Forces, and Kimberly Hawkins, the owner of Foodbenders restaurant. Their conflict arose after Ms. Hawkins started making Instagram posts through the restaurant’s account containing the hashtag “#zionistsnotwelcome”, to which Mr. DeLuca responded on his own Facebook account. The conflict escalated when Ms. Hawkins added posts directly relating to Mr. DeLuca. For example, she suggested that he was a terrorist who had and would harm and shoot Palestinian children. In addition, Ms. Hawkins encouraged her followers to report him to his employer. These statements received wide media attention online. Mr. DeLuca alleged that he was being defamed and that Ms. Hawkins’ conduct was directly impacting his ability to make a living.

The court found that the earlier stage of the dispute was not defamatory. They were simply expressing political opinions. The court did not address whether the comments made were antisemitic (or whether Mr. DeLuca’s comments were Islamophobic). But as things escalated into personal attacks, Ms. Hawkins crossed the line. The court awarded Mr. DeLuca $75,000 in general and aggravated damages, with an additional $10,000 in punitive damages, recognizing the severity of some of Ms. Hawkins’ defamatory statements about Mr. DeLuca and their impact on his reputation.

Notably, the court observed that Mr. DeLuca did not provide any evidence showing he missed out on clients or suffered any specific monetary loss. Even without this evidence, the court accepted that he was harmed and his reputation had suffered, so he deserved compensation.

Employer Takeaways:

1. Potential Legal Ramifications for Employers: The defamatory statements made online about Mr. DeLuca engaging in terrorism or shooting children had serious implications for his professional standing and could have affected his employment. Employers must be vigilant about addressing online harassment or defamation that spills over into the workplace and must be cautious in relying on any statements where serious allegations are being made by outside sources and investigate with those impacted.
2. Workplace Culture and Inclusivity: Employers should foster inclusive workplaces that prioritize diversity and respect for all individuals, regardless of their religious or political beliefs. Discriminatory behavior, whether online or offline, can create toxic environments that impact productivity and employee well-being. Even comments that don’t reach the level of legal defamation might be underinclusive and harm a work environment.
3. Social Media Policies and Guidelines: Employers may need to establish clear social media policies and guidelines to educate employees about responsible online behaviour. Training on the implications of social media use in professional contexts can help mitigate risks associated with online defamation and harassment.
4. Political Speech Versus Defamation and Harassment: Sometimes employees will defend statements by invoking free speech and their right to advocate for political positions. The line between fair political speech and defamation can be a fine one, but it exists. In Mr. DeLuca’s case, Foodbenders’ earlier posts promoting the Palestinian cause were not found to be defamatory. But the restaurant crossed the line when it suggested Mr. DeLuca was a terrorist and a murderer of children (among other things); although not explicitly mentioned in the decision, the allegation of child murder reflects harmful antisemitic tropes. Even in politically sensitive situations, employers should be on guard and act swiftly against comments that are hateful, stereotypical, or contain personal attacks.

As we reflect on the solemn significance of Holocaust Remembrance Day, and the lessons learned from this legal case, we must all reaffirm our commitment to combatting antisemitism and discrimination in all forms. Employers must take steps to eliminate hate and promote inclusion and respect to create comfortable and safe workplaces.