Published on January 30, 2008 by Donna Seale
As reported in the Winnipeg Free Press yesterday, Ebb and Flow First Nation in Manitoba has been found by the Canadian Human Rights Tribunal to have discriminated against a woman for withdrawing a job offer previously made to her. Although the complainant, Jean Bignell-Malcolm, was initially offered the job of Director of Education for Ebb and Flow’s school as she was by far the most qualified applicant, the Band Chief was found to have rescinded the offer on the basis that she is Cree, not Ojibway. Another woman who was Ojibway and spoke the Saulteaux language (the language predominantly spoken in the community) was subsequently offered the job.
This case is both interesting and significant.
Interesting components of the case
The case is interesting, from my perspective, for two primary reasons. First, it shows the dynamic at play in relation to human rights issues that arise in a First Nation community, particularly a small one such as Ebb and Flow. Second, it demonstrates that racial discrimination against Aboriginal persons in the workplace is not confined to situations where a non-Aboriginal person mistreats an Aboriginal person. Here, discrimination occurred between members of the same First Nation.
In this particular case, the evidence showed that once the decision was made to hire Ms. Bignell-Malcolm, the news of the decision spread quickly throughout the community. The acting Director of Education began receiving phone calls from members of the community who were upset about the person who had been selected for the Director’s job. Although he denied it at the hearing, a position that the adjudicator found not to be credible, the Band Chief received similar calls.
The adjudicator determined that, as a result of the concerns raised by the community over the job offer made to Ms. Bignell-Malcolm, at the meeting that was held with her to discuss terms of her employment, including salary, a decision had by that time been made by the Chief and the other members of the panel that interviewed her to discourage her from taking the job. They did this by offering her a low salary for the position and conducting hostile negotiations with her when she expressed concern over the offer. Although Ms. Bignell-Malcolm was unhappy with the Band’s final offer of $55,000, she felt she had no choice but to take this offer as she had already resigned from her previous job. The Chief gave the complainant until the next day to formally accept this salary in writing.
The adjudicator inferred from all of the evidence that came to light at the hearing that after the salary meeting, a petition was hastily organized for the purpose of fabricating a justification for the Chief and Council to ultimately rescind Ms. Bignell-Malcolm’s job offer. The petition was subsequently circulated in the community and delivered to the Chief which, in part, stated as follows:
"It took many years for the previous Chief and Council to gain control over our Education and it was their promise to us that we would always have our own people administering our Education program. Jean does not even speak our language. As Elders we promote our Education program. Will an interpreter be provided to us when we speak to Jean?"
Once he was in receipt of the petition, the Chief subsequently called the complainant to rescind the job offer. While he made mention of the petition, he did not advise her of what it said.
The adjudicator determined that the manner in which Ms. Bignell-Malcolm was treated after she had been offered the job was motivated by a "discriminatory animus." In other words, leaders of the Ebb and Flow First Nation decided to withdraw the job offer made to the complainant after being faced with community pressure to do so on the basis that she was not "one of them" — she was Cree rather than Ojibway.
Significance of the case
This case is significant for a number of reasons:
Further reading:
Bignell-Malcolm v. Ebb and Flow Indian Band, decision of the Canadian Human Rights Tribunal released January 25, 2008
Related posts:
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
