But employers can take several steps to stamp out discrimination against Aboriginals
A 2006 study by Human Resources and Social Development Canada showed Aboriginal workers are less likely than non-Aboriginal workers to have annual full-time employment.
The type of employment Aboriginals do have tends to consist of low-paid, low-skill jobs such as trades helpers, labourers and employment where the only training required is “on the job.”
While the gap in education between Aboriginal and non-Aboriginal Canadians is seen as the strongest explanation of occupational differences, there are other factors. Workplace discrimination may result in greater difficulty securing and retaining employment. Employers and employees should approach Aboriginal issues in the workplace with this context in mind.
Human rights legislation across Canada states that employers can’t discriminate against Aboriginal employees. An employer should assess whether it has adequately addressed a person’s right to freedom from discrimination on the basis of Aboriginal identity in recruitment and hiring, differential treatment in the workplace and workplace harassment that results in a poisoned work environment.
Recruiting and hiring
In Oxley v. British Columbia Institute of Technology, John Oxley said the B.C. Institute of Technology (BCIT) rescinded a job offer after it learned he was Métis and it failed to act in accordance with its equity policy when it hired two lesser-qualified candidates.
The B.C. Human Rights Tribunal found BCIT’s selection process and criteria were fairly and objectively applied, including a decision to focus on experience over qualifications. Oxley failed to show race, colour or ancestry were factors in the selection process and the tribunal was unable to conclude BCIT discriminated against him.
Aboriginal employers are not immune from discrimination complaints, either. In Bignell-Malcolm v. Ebb and Flow Indian Band, an applicant for a job with an Indian band who was of Cree descent claimed the band rescinded a job offer because she was not Ojibway. The band hired a candidate who was less qualified but was Ojibway and spoke Salteaux.
The Canadian Human Rights Tribunal agreed the band acted in a discriminatory manner when it offered the Cree applicant the position but changed its mind the next day after the community circulated a petition that called for an Ojibway candidate.
The tribunal rejected the band’s explanation that it required a Salteaux-speaking candidate because such a requirement was not specified in the job posting and never explored in job interviews. The Cree applicant was also never told it was the reason the job offer had been rescinded.
The band was ordered to pay nearly $50,000 in damages for lost income and $7,000 for pain and suffering, plus $5,000 for the way in which it rescinded the job offer when it knew it was acting in a discriminatory manner.
In Pitawanakwat v. Canada (Secretary of State), the Federal Court heard an appeal by an Ojibway woman who was dismissed after seven years of employment. Her first few performance appraisals were satisfactory, but later appraisals indicated unsatisfactory performance.
Mary Pitawanakwat filed a complaint with the Canadian Human Rights Tribunal alleging she had been discriminated against on the basis of her Aboriginal heritage. The tribunal found there was evidence she was monitored differently than other employees and the difference was racially motivated. It also found there were slurs, jokes and stereotyping in the workplace, which the employer seemed to be uninterested in investigating. The tribunal awarded damages for lost wages.
Pitawanakwat appealed to the Federal Court asking for reinstatement and damages for hurt feelings. The court found the tribunal erred by capping the damages at 24 months without offering any explanation, failing to order reinstatement and not awarding damages for hurt feelings. The case was referred back to the tribunal for redetermination.
Poisoned work environment
Perhaps the most common allegation regarding discrimination on the basis of Aboriginal heritage occurs where harassment and derogatory remarks create a poisoned work environment that causes a worker to quit.
In Reti v. Gibbs, Tyler Reti was subject to harassment in the workplace on the basis of his First Nation ancestry. The Yukon Board of Adjudication found there was a general acceptance of inappropriate comments about Aboriginal people by staff and management and a reluctance by management to address the issue. The board was particularly troubled by the fact the comments were overheard by Aboriginal children at a group home operated by the employer.
The board awarded Reti $3,000 for injury to dignity, feelings and self-respect, and a further $1,500 for having been dismissed in retaliation for filing the harassment complaint. The employer and its staff were also ordered to attend a one-day cultural sensitivity workshop.
In Hopkins v. Turingia, an employee of Aboriginal descent resigned her employment and filed a complaint stating her employer had made discriminatory comments related to her heritage. The B.C. Human Rights Tribunal concluded that although there were other factors contributing to the employee’s decision to resign, the discriminatory statements were a significant factor. The employer was ordered to pay $2,500 for injury to dignity, feelings and self-respect.
Employers should be aware of the context of Aboriginal identity in Canada in all aspects of employee relations, including recruitment, hiring, the course of employment and dismissal. It is essential for employers to assess workplace policies to ensure they adequately address issues of discrimination and are based on objective criteria. Finally, employers will be well-served by providing employees with training on the benefits of treating each other with dignity, respect and understanding.
For more information see:
•Oxley v. British Columbia Institute of Technology, 2002 CarswellBC 3455 (B.C. Human Rights Trib.).
•Bignell-Malcolm v. Ebb and Flow Indian Band [2008] C.H.R.D. No. 3 (Lloyd).
•Pitawanakwat v. Canada (Secretary of State), 1994 CarswellNat 282 (Fed. T.D.).
•Reti v. Gibbs, 1999 CarswellYukon 124 (Y.T. Bd. of Adjudication).
•Hopkins v. Turingia, 2003 CarswellBC 2866 (B.C. Human Rights Trib.).
Kate A. Zavitz is an associate in the Toronto office of Borden Ladner Gervais and practices in the areas of labour and employment law and education law. She can be reached at (416) 367-6535 or [email protected]. This article was prepared with the assistance of Théa Lowry, student-at-law.
