'If someone's going to be working in an Indigenous community or be employing Indigenous employees, there are a different set of rules'
The British Columbia Human Rights Tribunal has found that the province’s Independent Investigations Office (IIO) discriminated against an Indigenous woman during a recruitment process.
The tribunal concluded that stereotypes related to the worker's race and sex influenced the IIO’s decision to rescind a job offer.
The worker, who was of Métis background, applied for a position as an investigator with the IIO, an independent oversight body that investigates serious incidents involving police agencies.
The IIO asked that one of her references be her current supervisor, but the worker replied that she hadn’t worked long enough with him for him to know her skill set. She also thought it could jeopardize her current job without a firm job offer.
On May 24, the IIO offered her the position, conditional upon completion of enhanced security screening checks. The worker accepted the offer one week later.
Security screening
The personnel screening and security office (PSSO), which conducted security screening for IIO employees, informed the worker that she would have to undergo a polygraph examination and complete a security screening questionnaire.
The polygraph exam was conducted by a white ex-police officer on June 15. The worker was surprised it was being recorded and wondered how the information would be used.
According to the worker, the examiner got “really mad” and told her he would store the recording in his briefcase and home office. She asked him to call someone in HR who could fully answer her questions, so he made a call and left a message. However, he proceeded with the exam without waiting for a response. When she raised a concern about continuing, he slammed his notebook on the table and told her to wait in the hall.
The worker felt intimidated because the examiner was an ex-police officer and she was an Indigenous woman. The examiner later denied getting frustrated or slamming his notebook down, but he acknowledged that he asked her to leave and was taken aback by her questions.
The worker asked the chief of investigations to address her concerns over her personal information and the recording before she proceeded with the polygraph and asked for a different examiner. The chief felt that the worker was trying to get out of the polygraph exam, although the worker didn’t say anything to that effect.
Privacy concerns
There was more back-and-forth communication over the worker’s current employer information and the worker agreed to provide a statement of earnings. She was also told that the polygraph recording was stored for six months and the original examiner would continue, as he had been a certified polygrapher since 2000 with no previous concerns.
The worker requested a copy of the polygraph recording, but the IIO declined, citing the integrity of the polygraph process. The worker wasn’t happy and said the responses were “arbitrary rather than sound policy that protects candidates’ privacy.”
The worker attended a second polygraph exam on July 4. According to the worker, the examiner commented that women were better liars than men. He asked her about multiple gaps in her employment and the worker said she had to leave work to look after her ill father in Manitoba. The examiner replied that he had policed there where “many First Nations were obese and drank pop and ate potato chips.” These comments upset the worker due to her Indigenous background.
The examiner asked after the exam if the worker engaged in alcohol, illegal sex or illegal drugs. The worker felt that he was trying to humiliate her, but the examiner later said questions about drugs and alcohol were standard because they could affect the test results.
On June 28, the chief of investigations recommended rescinding the offer of employment due to “serious flags of concern” during the security screening process, along with the worker’s “accusatory” and “demanding” communications.
The polygraph examiner relayed the results of the exam to the PSSO, which didn’t identify any security concerns but mentioned the worker’s history of short-term employment.
Offer of employment rescinded
On July 17, the PSSO’s security screening report indicated that the worker passed her criminal record check, the security screening questionnaire, and the polygraph exam. However, the PSSO noted that the worker’s “various dismissals and circumstances surrounding them suggests a pattern of behaviour which may be a concern” and her correspondence with the IIO was “adversarial in nature,” recommending further consideration of her suitability for employment.
On July 20, the IIO rescinded the offer of employment due to “serious concerns… regarding your communications and interactions with our office, and with the security screening process.”
The worker filed a human rights complaint alleging the IIO discriminated against her on the basis of her race and sex.
The tribunal found that the worker’s identity as an Indigenous woman involved protected characteristics under the BC Human Rights Code, meeting the first part of the three-part test for prima facie discrimination. The rescission of the job offer was an adverse impact in her employment, which met the second part of the test, the tribunal said.
The tribunal also found that the examiner’s questions about drugs and alcohol were standard but negatively impacted the worker because they made her feel like she was being stereotyped as an Indigenous woman, while his other comments revealed “insidious stereotypical views of Indigenous people” and women.
“Human rights tribunals take a wide approach to who's considered to be in an employment relationship, so [the IIO] was liable for [the examiner’s] actions, even if he was an independent contractor,” says Melanie Samuels, chair of the Employment and Labour group at Singleton Reynolds in Vancouver. “With any third-party contractor, employers have to ask, ‘Have your people been trained on discrimination issues as it relates to human rights and recruitment?’”
Discrimination, harassment
The tribunal also found that the examiner’s influence was evident in the PSSO report that referred to the worker’s history of short-term employment and her adversarial correspondence. The examiner “could have influenced the PSSO report either by influencing the staff who drafted the report, or through his polygraph report" – and the report was considered in the decision to rescind the offer of employment, the tribunal said.
“The employer has an obligation to provide a workplace free of harassment, so this says to me that [the IIO] wasn’t training its people,” says Samuels. “It's kind of shocking, the fact that someone would even make those comments, and obviously the tribunal believed the worker’s version of what he said versus his version, and I think [the IIO] wasn’t credible when it said that it wasn’t privy to his comments about her.”
The tribunal determined that the worker’s race and sex were likely factors in the IIO’s decision to rescind the job offer.
"I find it more likely than not that the IIO viewed [the worker] through the stereotypical lens of a demanding, suspicious Indigenous woman, and that these views informed the decision to rescind the job offer," the tribunal said, noting the chief of investigation’s belief that the worker was trying to get out of the polygraph exam when she wasn’t.
Worker’s discomfort
The tribunal further noted that the IIO didn’t meaningfully address the worker’s concerns about the examiner’s conduct or how her personal information was handled.
Part of the problem may have been personality conflicts and how the IIO viewed the worker’s strong personality, but that didn’t mean there weren’t discriminatory elements, according to Samuels.
“If even one out of a thousand reasons why they chose to withdraw [the offer] was based on her Indigenous status or that she was a woman, then that's enough to muddy the waters,” she says. “Every time you withdraw a job offer, you take a risk – it would’ve been better to have hired her and then let her go during a probationary period if it wasn’t working.”
The tribunal ordered the IIO to pay the worker $36,900.48 as compensation for lost wages the worker would have earned had the job offer not been rescinded, plus expenses. Additionally, the IIO was ordered to pay $15,000 for injury to the worker’s dignity, feelings, and self-respect from the discrimination.
The tribunal also encouraged the IIO to review its recruitment process through the lens of cultural safety.
Cultural awareness, training
Although the tribunal didn’t order training, it’s important for employers to have cultural awareness and train employees on it, says Samuels.
“If you're in a community or an industry where you're more likely to have someone from a particular culture or background, then you should be doing sensitivity training,” she says. “If someone's going to be working in an Indigenous community or be employing Indigenous employees, there are a different set of rules - it sounds like it wasn’t even on [the IIO’s] radar.”
“Employers have to have absolutely clean hands and be careful – they may think that if it's in a pre-hiring process then it doesn't matter, but obviously it does - it was an expensive lesson for [the IIO].”
