The Ontario Human Rights Commission (OHRC) developed its Policy statement on Indigenous-specific hiring and Context guide for the Policy statement on Indigenous-specific hiring to support employers hiring for Indigenous-specific positions. This Frequently Asked Questions page (FAQ) answers common questions with summary information from the policy statement and accompanying context guide.
1. Can I restrict hiring to Indigenous candidates only?
2. What is a special program? Do I need permission to create one?
3. What is special employment?
5. Why is it not considered discrimination to limit hiring to a specific group?
9. What complexities should I be aware of when confirming a candidate’s claim to being Indigenous?
10. What happens if a candidate is unable or unwilling to substantiate their claim to being Indigenous?
11. Can I ask for proof of Indigenous identity from current employees in Indigenous-specific positions?
1. Can I restrict hiring to Indigenous candidates only?
Hiring Indigenous employees for Indigenous-specific positions is permissible under the Ontario Human Rights Code (the Code) for the purposes of attempting to achieve substantive equality if it is done as part of a special program (section 14 of the Code) or special employment (section 24 of the Code).
2. What is a special program? Do I need permission to create one?
Section 14 of the Code allows for special programs designed to help people who experience hardship, economic disadvantage, inequality, or discrimination for the purpose of promoting substantive equality.
This includes special programs intended to support Indigenous people and to address their unique experiences of discrimination and marginalization. The Code also protects these programs from human rights claims by people who do not experience the same disadvantage.
Example: A school board has collected data and found that very few of its teachers are First Nations, Inuit, or Métis. It creates a special program aimed at building a larger pool of Indigenous teachers who can be hired into available positions. More Indigenous teachers will also help promote a more inclusive learning environment and substantive equality for Indigenous students, as well as promote reconciliation initiatives among all students and staff.
Example: For an Ontario university seeking to work towards reconciliation through the implementation of an Indigenous studies program, it may be reasonable to specifically hire Indigenous faculty with the knowledge and lived experience specific to the courses being taught to ensure the effective implementation of the special program.
Special programs require a clear and specific rationale, as well as adequate eligibility criteria. This helps individuals and organizations – who may see special programs as discriminatory – understand their purpose, how the program is meant to be used, and how success will be evaluated.
Organizations do not need permission from the OHRC to develop a special program and do not need to prove Indigenous peoples are disadvantaged as it is widely accepted that they face ongoing systemic discrimination in all social areas under the Code.
3. What is special employment?
Section 24 of the Code provides special employment provisions that further define the scope of the general right against discrimination in employment. Under section 24(1) of the Code, a religious, philanthropic, educational, fraternal or social institution or organization can seek to specifically hire an Indigenous person if the organization is primarily focused on serving the interests of Indigenous people, and if being Indigenous is a legitimate or “reasonable and bona fide” requirement of the job.
Example: It may be a reasonable and a bona fide requirement that an urban Indigenous child welfare organization hire Indigenous social workers to serve the children and families they work with in a culturally appropriate way.
In understanding why Indigenous identity can constitute a “reasonable and bona fide qualification” in the context of section 24(1), it must be underlined that in addition to the diversity of worldviews among Indigenous peoples and individuals, there exists commonalities and areas of overlap in how they engage with the world and in their experiences of colonialism, which are reflected in some shared elements across distinct Indigenous peoples’ ways of knowing, doing, and being (e.g., relationality, holism).[i] These perspectives are often at odds with dominant Western worldviews, which is why it becomes critical to ensure that “Indigenous perspectives are the lens through which Indigenous issues are understood”[ii] and why Indigenous identity can constitute a valid occupational requirement.
Example: An organization that provides health services to Indigenous people is recruiting a nurse. With consideration for the distinct ways in which Indigenous peoples may relate to medicine, it would be a “reasonable and bona fide qualification” to require that the successful candidate be an Indigenous nurse with a demonstrated understanding of Indigenous health practices.
The OHRC still cautions against essentialism and tokenism. Indigenous people should not be reduced to colonial stereotypes, but instead, be respected and empowered to use their cultural knowledge in their professional roles without assumptions.
4. Can I restrict hiring to candidates from specific Indigenous communities (e.g., First Nations in northwestern Ontario)?
In some cases, yes.
However, the justification for such specific restrictions should be made clear. Whether in the context of a special program or special employment, eligibility requirements should flow naturally from the rationale based on evidence.
Example: A library is looking to host a series of public education events and specifically hire Indigenous educators to discuss Indigenous history. Eligibility will be dependent on the specific purpose and content of the events. Thus:
- If hiring someone to discuss the history of a specific Treaty territory, it may be reasonable to limit candidates to Indigenous individuals who belong to a signatory Indigenous nation to that Treaty (e.g., members of Indigenous peoples who are part of the Williams Treaty may be prioritized for discussion about their land claim settlement).
- If hiring someone to discuss the broader topic of the history of the colonization of Canada, it would be reasonable to consider candidates from any Indigenous people across Canada.
Criteria should relate to the purpose of a special program or to bona fide and reasonable requirements for special employment.
5. Why is it not considered discrimination to limit hiring to a specific group?
Section 5 of the Code affirms that every person has a right to equal treatment in employment without discrimination because of their identification with one or more protected personal characteristics known as prohibited grounds of discrimination.
The Code (as well as other Canadian legislation such as the Charter of Rights and Freedoms and the Canadian Human Rights Act) also recognizes the importance of addressing historical disadvantage by protecting special programs and special employment to help marginalized groups and attempt to achieve substantive equality.
Substantive equality means understanding and meeting the needs of disadvantaged persons or groups. It considers discriminatory barriers, not all of which are obvious or intended. People from groups experiencing historical and ongoing disadvantage often do not have access to the same opportunities as others. Special programs and special employment help to improve access to these opportunities.
6. My organization is not a religious, philanthropic, educational, fraternal or social institution or organization primarily focused on serving the interests of Indigenous people, nor does it have any special programs currently in place. Can I still restrict hiring to Indigenous candidates only?
Restricting hiring to Indigenous candidates only (or any group identified by a Code ground) will likely infringe the Code unless the hiring is part of a special program or special employment.
If your organization does not meet the specifications required by section 24 of the Code to offer special employment, it may still create a special program aimed at addressing systemic disadvantages faced by Indigenous people in employment. See question 2 of this FAQ for more details.
7. Can I ask for proof of Indigenous identity from a candidate? How can I do so respectfully and appropriately?
The Code permits employers to confirm claims of Indigenous identity during the hiring process and the OHRC takes the position that employers should do so in cases where hiring is being done for an Indigenous-specific position created as part of a special program or under special employment.
Example: If a candidate for an Indigenous liaison position to facilitate public engagement with Indigenous groups self-identifies as Métis and claims to have cultural knowledge and lived experience of being consulted by governments and proponents on land use matters, the employer should confirm the candidate’s Métis identity and cultural knowledge during the hiring process.
Confirmation processes should be tailored and proportional to the needs of a given position.
Example: An organization launches a recruitment process under section 24(1) of the Code for two Indigenous-specific positions: an Indigenous affairs manager and an Anishinabemowin interpreter/translator. The distinct occupational requirements for the two positions are tied to different elements that may relate to Indigenous identity (e.g., expertise about Indigenous protocols and proficiency in Anishinabemowin) and may therefore involve different confirmation processes.
Employers must ensure that any confirmation process follows inclusive design principles and does not directly or constructively discriminate against Indigenous people (i.e., members of the protected groups intended to benefit from a special program or special employment) by relying on underinclusive definitions of who is Indigenous and overly rigid evidentiary requirements to substantiate a claim.
Confirmation processes must 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. Indeed, a special program is not insulated from being challenged as discriminatory by individuals whom a special program is designed to assist (see Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (CanLII)).
Employers seeking to hire Indigenous people for Indigenous-specific positions and to confirm their identity claims need to build, maintain, honor, and respect relationships with rightsholders and local Indigenous peoples and organizations that serve the community, and meaningfully engage with them to develop policies and practices on appropriate confirmation processes.
8. Why should I confirm a candidate’s claim to Indigenous identity? Should I not respect self-identification?
Recent census data shows that the population of persons who self-identify as First Nations, Inuit, or Métis in Canada has increased significantly over the past decade (+18.9% from 2011 to 2016 and +9.4% from 2016 to 2021).
This reflects that Indigenous individuals can more safely and openly self-identify as Indigenous, which gives them access to increased support and to unique and distinct rights.
However, the growing number of alleged cases of misrepresentation of Indigenous identity highlights new opportunities for dishonest or misinformed non-Indigenous individuals to exploit the system which exists to honour self-identification as an element of Indigenous peoples’ right to self-determination.
Misappropriating Indigenous identity – whether intentionally, by exaggerating distant genetic ties to an Indigenous ancestor, or by incorrectly interpreting family stories – is a harmful practice which can constitute a breach of trust.
The late Honourable Murray Sinclair stated in a 2021 statement :
It is clear that self-identification of Indigeneity no longer works. Self-declaration is an important part, but it is just the beginning. We must go beyond an honour system and include voices from Indigenous communities across Turtle Island.
9. What complexities should I be aware of when confirming a candidate’s claim to being Indigenous?
In Canada, the term “Indigenous” refers to the distinct and unique nations and cultures of First Nations, Inuit, and the Métis, who are the original inhabitants of the land known as Canada. However, the Code does not define or describe “Indigeneity” or the complexities of Indigenous identity(ies). This includes questions about who is considered Indigenous, who can self-identify as Indigenous, or what authentic markers of Indigenous identity may be.
The right of Indigenous peoples to self-determine who they are implies that Indigenous identity ought to be straightforward because each individual Indigenous people should define it in their own terms. However, the historical and ongoing reality of settler colonialism has undermined the agency of Indigenous peoples over their identities.
Building relationships with local Indigenous peoples and organizations is important in the process of hiring for Indigenous-specific positions; and when confirming claims of Indigenous identity. The term “local” can have various interpretations, but the OHRC encourages employers to start by identifying whose land is being used to carry out their business activities. If the business is in an urban area, it is advisable to engage with organizations that serve Indigenous people in the area, such as Friendship Centres, Indigenous women’s organizations, and health or support centres.
Confirming a candidate’s claim to belong to an Indigenous people in Canada may require distinct steps from confirming a claim to belong to an Indigenous people outside Canada.
10. What happens if a candidate is unable or unwilling to substantiate their claim to being Indigenous?
Where a candidate faces barrier to substantiating their claim to being Indigenous, employers are encouraged to work with the candidate and with Indigenous partners to identify ways in which these barriers can be jointly overcome.
Where a candidate refuses to participate in a process to confirm that they meet special program or special employment requirements, they may be effectively refusing to participate in the hiring process. The rationale, purpose and stages of a confirmation process should be clearly communicated to candidates to encourage dialogue and support for the process.
11. Can I ask for proof of Indigenous identity from current employees in Indigenous-specific positions?
Confirming claims of Indigenous identities should happen at the recruitment stage of an employment relationship. Efforts to confirm claims of Indigenous identities at later stages may raise potential employment law issues.
Employers must ensure they respect their human rights obligations under the Code and comply with other applicable employment laws or regulations when making decisions related to Indigenous identity confirmation processes.
[i] Indigenous Corporate Training Inc., Indigenous Worldviews vs Western Worldviews, webpage. Retrieved on September 9, 2024; available online: https://www.ictinc.ca/blog/indigenous-worldviews-vs-western-worldviews
[ii] Adam Gaudry and Danielle Lorenz, “Indigenization as inclusion, reconciliation, and decolonization: navigating the different visions for indigenizing the Canadian Academy”, (2018) AlterNative: An International Journal of Indigenous Peoples, 14(3), at 224; available online: https://journals.sagepub.com/doi/10.1177/1177180118785382