When and how to screen for 'Indigeneity'
In the age of diversity, equity, and inclusion (DEI), businesses may wish to increase the representation of minorities in their workforce. It is now generally accepted that a more diverse workforce can strengthen an organization overall, and businesses have responded by building DEI into their policies and hiring practices.
However, discrimination on the basis of race is still technically discrimination even when a minority applicant is selected on the basis of their race, and is prohibited by human rights law. For example, s. 16 of the Saskatchewan Human Rights Code, 2018 (SHRC) provides that employers are not permitted to discriminate based on prohibited grounds such as race or perceived race in employment or hiring. Similar provisions can be found in human rights legislation across Canada.
To allow employers to hire minority applicants with the goal of ameliorating disadvantage, federal and provincial human rights laws provide an exception to the general rule against discrimination in employment practices. The SHRC allows organizations to implement employment equity programs for the purpose of preventing, reducing, or eliminating disadvantage, and it also allows organizations to hire preferentially by developing reasonable and justifiable measures to address underrepresentation.
The Canadian Human Rights Act (CHRA) allows federally regulated employers to engage in preferential hiring practices through “special programs” which are designed to help organizations avoid human rights violations. Federally regulated employers with over 100 employees are also required by the Employment Equity Act to develop and implement an employment equity plan.
In many jurisdictions, Indigenous peoples have been designated as an approved equity group for human rights purposes, such that targeted hiring practices that increase Indigenous representation in the workforce, if done properly, will not be offside of applicable human rights legislation.
Whether your organization is provincially or federally regulated, your jurisdiction will have specific guidelines and reporting requirements which your legal team can assist you in navigating.
Preferential hiring program
If your organization has implemented a preferential hiring program, at some point you will need to ask job applicants if they identify as Indigenous. Screening for Indigeneity is not always easy. Recently, the general consensus has become that self-identification is no longer enough, but beyond that, there is no consensus as to what form sufficient proof of Indigeneity should take.
Despite lack of consensus as to the proper way to screen for Indigeneity, this article provides some possible methods of confirming an applicant’s Indigeneity that an organization may wish to request, bearing in mind that proof of Indigeneity should only be requested where Indigenous identity is a condition of hire (for example, where an Indigenous person is being hired as part of a preferential hiring program with the goal of increasing Indigenous representation in the workforce).
Status or membership card from a recognized entity
An Indian status card, or a Métis or Inuit citizenship card from an Inuit or Métis community, council, or nation are the simplest ways to confirm Indigeneity. Indian status cards (also known as Treaty cards) will still be acceptable for hiring purposes even if the card is expired. However, expired Métis or Inuit citizenship cards may need to be treated with caution, depending upon whether the Métis and Inuit representative governments are accepted by the broader Métis and Inuit communities.
Lack of an Indian status card should not be a barrier to proving Indigeneity. The Canadian government’s policies of assimilation throughout Canadian history intentionally excluded people from Indian status. This means that there are Indigenous peoples in Canada who do not have status cards, but they may be a non-status member or citizen of a First Nation, or a member of a Métis or Inuit community. Where a card is not available, there are other methods to screen for Indigeneity.
To ensure that you are not unintentionally excluding Indigenous persons from your preferential hiring program, keep in mind:
- Indigenous groups themselves get to decide who their members are.
- Actual membership or citizenship in a Nation is different than familial adoption and close relationships.
- Indigenous identity is less an individual right than it is a connection to a collective or a particular community.
Affirmation form, job application
Your organization may require the new hire to sign a declaration affirming that the job offer is conditional upon the truth of the applicant’s self-declaration. No further proof would be required, but the form should clearly state the consequences of falsifying Indigenous identity (i.e., revocation of appointment).
A series of questions on the job application form provide the applicant an opportunity to describe their connection to their Indigenous identity and Indigenous community. Questions could touch on subjects such as how long the individual has identified as Indigenous, whether they have a Nation or community they belong to (or that claims them), and if so what their community means to them. The job application form could also invite the applicant to provide Indigenous references from their community leaders, such as a band council resolution or letter, or a letter from a recognized Métis or Inuit government. Due to historical discrimination in the Indian Act, individuals may have been denied Indian status until very recently and may have no connection to their community. This does not mean that the individual doesn’t identify as Indigenous and flexibility will need to be provided in consideration of the individual’s particular circumstances.
Consultation is key
Where no membership or status card is available, proving Indigeneity can become complicated and controversial. The most important thing to remember is that consultation is key. Indigenous communities themselves determine their own membership and must lead the way in developing screening policies. Membership practices will differ from group to group and province to province (or territory). Consultation should take place with First Nations, Métis, and Inuit communities, and the emphasis should be on local practices.
Amy Gibson is a partner at MLT Aikins in Saskatoon practicing employment and labour law.
