Context and cultural sensitivity are key when identity misrepresentation is alleged, legal expert says
It's another case of alleged Indigenous identity fraud and misrepresentation.
This time it involves a teaching instructor and lawyer at the University of Toronto. A complaint has been filed with the Law Society of Ontario to take disciplinary action against the instructor due to a lack of evidence related to her Indigenous identity.
Promise Holmes Skinner, the person facing the allegations, identifies as Anishinaabe-Canadian and has built her career specializing in Indigenous law, Global News reports.
In a statement, Skinner says that while she has no direct evidence linking her identity to her Indigenous ancestry — which she believes to be her grandmother from the Cree Corkery First Nation in Ontario — she had an understanding of the culture. She also says she has not received any “benefits or positions” reserved through her identity, Global News reports.
Crystel Samagaio, who leads an organization that tracks and exposes individuals claiming Indigenous identity fraud, is the one who filed the complaint. In 2024, she testified before the House of Commons Standing Committee on Government Operations on the issue of non-Indigenous peoples using Indigenous identity to claim “lucrative procurement contracts.”
With allegation cases such as this, it brings up a question of not only how employers and HR should act when allegations arise, but the cultural sensitivity that comes with the allegations.Nicole Chanderpaul, a lawyer at Matthews, Dinsdale and Clark LLP in Toronto, Ont., says allegations and cases like these must be treated as context-dependent and culturally sensitive.
“It is highly specific to the situation, the allegation, and the conduct at issue — even when it is misrepresentation,” she says.
Start with allegation, not assumption
The first obligation is understanding what is being alleged.
“There are other situations where the employer actually relied on someone’s explicit representation regarding their identity when making the decision to hire them. That’s a little bit more material,” she says. “And that can be especially important if there’s a specific program or position that was created or reserved and intended to support and provide opportunities for Indigenous people. That becomes even more material.”
Relevance is important in situations of misrepresentation and identity — the allegation has to connect to the employment relationship, and if it does not, it might not need to be investigated, she says.
That means looking at how identity is tied to the employee’s job or role.
“There are other situations though —, let’s say the employer actually relied on someone’s explicit representation regarding their identity when making the decision to hire them — that’s a little bit more material,” she says. “Tthat can be especially important if there’s a specific program or position that was created or reserved and intended to support and provide opportunities for Indigenous people. So, that becomes even more material.”
That can also include whether their identity plays into the specialized services they offer to a community.
“There are so many degrees of it,” Chanderpaul adds.
OHRC: Indigenous identity verification
The Ontario Human Rights Commission has released guidelines for employers on how to conduct verification of Indigenous identity, particularly for Indigenous-specific positions under its policy approaches.
The commission states that regardless of whether a candidate self-identifies as part of an Indigenous group or culture and has lived experience of that identity, confirmation should still be obtained during hiring. The OHRC also notes that confirmation should not be treated as a blanket process but should be position- specific.
“Particular attention should be paid to ensuring that confirmation processes do not perpetuate the marginalization of Indigenous individuals whose identities may have been disproportionately impacted by colonial policies, such as Indigenous women, as they may face greater difficulty providing streamlined information to confirm their identity claims,” it states.
Running a fair workplace investigation
If a workplace investigation does proceed based on the allegation, it needs to be conducted “impartially, thoroughly, and procedurally fair,” Chanderpaul says.
That process should include establishing and determining facts, as well as looking over policies, obligations, and statutes that may be relevant to the situation.
“Throughout the process and by the end is to assess the evidence and reach findings — conclusions — on the applicable standard of proof, which is generally the balance of probabilities, but without deciding any outcomes in advance,” Chanderpaul says.
Most HR staff can conduct these investigations, she says, but an independent investigator may be advisable when the circumstances are serious or contentious, or when there is a perceived conflict of interest.
“Sometimes it’s not always possible to keep the lines that clean when it’s an internal investigation, but that’s why external investigators are trained in that way — they’re usually retained only to do the fact-finding exercise and leave those employment decisions up to the employer as appropriate,” she says.
Cultural sensitivity from HR
When it comes to allegations around Indigenous identity, there can be aspects of the investigation that require added sensitivity, says Chanderpaul.
“When a person’s identity is at issue, there should be special considerations and mindfulness not to conflate questions about the accuracy of a particular representation with assumptions about how a person of a specific cultural background or ancestry should look, behave, or otherwise demonstrate their identity.”
Chanderpaul says HR should make sure cultural knowledge is built into the process.
“You can be as sensitive as you want, but if you don’t have certain knowledge and you’re not able to obtain that in the course of the investigation, it’s important to get that somewhere else — whether that means bringing in an expert or a community member,” she says.
If an investigation does find a misrepresentation occurred, just like with any situation, Chanderpaul says employers need to make sure the response and disciplinary action is proportionate.
“Was it repeated misrepresentation? Was it one time? If it was one time, in what context? Was it for being hired? Was it in speaking to a community member? Was it part of their job?” she says. “It’s so context- dependent. That’s why the importance of proportionality exists.”
The University of Toronto, like many others, has policies around verifying Indigenous identity. Global News reports that when asked for a statement about the allegation, the university refused to comment. Additionally, the university removed from its website the page on how it conducts its Indigenous verification process, later re-uploading another outline with added requirements including genealogical evidence and membership documentation.
