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Employers Hiring Persons of Indigenous Ancestry

April 25, 2023 - Ron Kruzeniski, Information and Privacy Commissioner

I was asked recently about an employer’s ability to ask a candidate about their indigenous ancestry. This is a difficult question in light of media coverage of situations where claims of indigenous ancestry turned out not to be true. I first noted section 19 of the Saskatchewan Human Rights Code that prohibited asking questions about race. I was asked whether an employer could have a policy on this. Whether an employer has policy on this issue or not is a decision of the employer and it is not for me to comment whether they should or should not have a policy.

Before deciding on a policy, an employer needs to determine whether they are going to develop an Employment Equity plan and seek approval from the Human Rights Commission or whether subsection 16(10) of the Saskatchewan Human Rights Code allows them to have preferential hiring on the basis of race. If an employer does not have an approved Employment Equity plan or is not an employer under subsection 16(10), I would assume asking about indigenous ancestry should not occur. If an employer has an approved Employment Equity plan with a target for hiring persons of indigenous ancestry or is an employer under subsection 16(10), then either as part of the plan, or part of a policy, the employer should outline the degree to which it will require supporting evidence of indigenous ancestry.

If an employer decides to have a policy, then I have some advice for that employer from a protection of privacy point of view.

First, if you are covered by privacy legislation provincially or federally, you can collect personal information with authority (legislated or consent), but it is best to determine ahead of time if it is necessary and declare the purpose for which you are collecting the information before collecting it. So, the first step in developing a policy is to indicate why you are requesting evidence of indigenous ancestry, which should be authorized by the Saskatchewan Human Rights Code.

Next you need to determine when the policy applies. If you are recruiting without giving a preference to a person of indigenous ancestry, the policy should not apply. If you are recruiting and giving a preference to a person of indigenous ancestry, then the policy should state that the policy applies. Put another way, if the job vacancy does not require or give preference to a person of indigenous ancestry, then one should not ask any question regarding ancestry.

If the job requires or gives preference to a person of indigenous ancestry, then the employer can determine to what extend they will verify the statement of that applicant that they are indigenous and should then put that in their policy. My suggestion is the policy indicate that when a candidate declares they are of indigenous ancestry, the employer request they sign a consent which allows the employer to take certain steps to verify indigenous ancestry. Consents make it clear to the applicant that verification will occur, and the employer knows it can take the steps referred to in the consent to verify.

Finally, the policy should indicate what will be done with information collected to verify indigenous ancestry. For example, with criminal record checks, some policies indicate that all that has to occur is the proof is shown to an HR person and nothing has to be recorded. Alternatively, the employer might indicate that the documents showing indigenous ancestry be copied and placed on a confidential HR file. Again, from a privacy perspective, the data minimization principle should be followed.

If there is a need to maintain documentation, then the policy should indicate who has access to those records (i.e., restricted to those with a need-to-know) and when those records can be and should be destroyed. The document should only be destroyed in accordance with the organization’s retention policy.

To repeat, it is not my place to determine whether an employer has a policy on proving indigenous ancestry, but if an employer decides when giving preference to indigenous ancestry to have a policy, I would encourage them to consider the above in developing that policy.

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