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Howard Levitt: Those pretending to be Indigenous to advance their careers risk employment law reckoning

Mary Ellen Turpel-Lafond
Mary Ellen Turpel-Lafond

What if, to take advantage of affirmative action, you pretended to be something or someone you are not, claiming a disability so as to require an accommodation or claiming to be a member of a historically disadvantaged group?

We had the famous case of Rachel Dolezal in the U.S., the purportedly Black head of the Spokane Washington NAACP chapter, who also claimed Native American blood and to have been the victim of race-related hate crimes. That is, until her parents outed her as a white woman. She ultimately was forced to admit her actual ancestry but, in her defence, then claimed to self-identify as Black. Obviously a rank naif, I never thought that that was even possible. At a time of affirmative action in employment, with employers focusing on hiring more BIPOC employees, minority status has definite advantages. The potential of such false claims is one of the arguments against affirmative action.

Does Canada have its own Rachel Dolezal?

The controversy circling Mary Ellen Turpel-Lafond, the prominent professor and former judge whose claims of native ancestry have been challenged in a series of CBC reports, is certainly stirring up similar outrage.

According to those CBC reports, Turpel-Lafond has self-described — including to the Senate during one presentation — as a Cree born in Norway House, a poor reserve in Manitoba. She claims to have survived an abusive, alcoholic home where she suffered physical mistreatment in rural Manitoba, skipping high school but then rising to the point of obtaining degrees from Harvard and Cambridge. However, the 1996 edition of Who’s Who, on which she served as an editorial adviser, showed that she was actually born in Niagara Falls, something cousins and her ex-husband apparently confirmed when contacted by the CBC.

When her father’s parents’ white ancestry was pointed out by the CBC, Turpel-Lafond then reverted to the claim that he had actually been adopted from a Cree family. Last week, the CBC reported it had found her father’s birth certificate, which showed that William Turpel was born in Victoria as the natural-born son of British parents, rather than an adopted Cree boy, as Turpel-Lafond had, without evidence, claimed. Turpel-Lafond did not reply to the CBC’s inquiries on these points.

Audra Simpson, a political anthropologist at Columbia focusing on Indigenous politics in the U.S. and Canada and a Kahnawa:ke Mohawk, recently wrote about Turpel-Lafond’s case in the Boston Globe, where she described the trend of Indigenous identify theft as “a horror story set to repeat.”

Simpson decried that Turpel-Lafond has appropriated the histories of aboriginals, who she says have the lowest life expectancies of anyone in Canada, are the most raped, most endangered and have now lost more of their children to foster homes than to the infamous residential schools.

To Simpson, allegations of appropriation against many high-profile North Americans, including filmmaker Michelle Latimer, author Joseph Boyden and U.S. university professor Elizabeth Hoover, “remind us the embrace that should have been extended to people affected by this discrimination is offered now to those who appropriate those effects as their own”

A recently formed group called the Indigenous Women’s Collective has called on 11 universities to revoke Turpel-Lafond’s honorary doctorates referring to her as a “pretendian” (pretend Indian).

When this story first broke a month ago, the response of many aboriginal groups was to support Turpel-Lafond, who had done so much good work for their community. But as more facts emerge, some aboriginal leaders are distancing themselves from that initial support, including Cindy Blackstock, a renowned First Nations scholar who was just named Chancellor of the Northern Ontario School of Medicine (NOSM) University. Blackstock had previously noted that “Turpel-Lafond’s career accomplishments had added credibility because of her claims of being an Indigenous person herself.”

What employment law issues arise from this sad story?

As I initially commented on this saga, if employees lie about their background and qualifications and those lies assist them in obtaining employment, it is cause for discharge whenever that lie is uncovered, even if considerable time had passed and they had been doing an excellent job. Effectively one cannot deceive one’s way into a job and then hope to keep it.

It is also the case that in positions of authority or fiduciary positions, any dishonesty can be cause for discharge because integrity is fundamental to the position itself. That is why, for example, cause often occurs, not because of the misconduct which is investigated, which may not be serious enough to be cause for discharge, but because the employee lied to the employer during that investigation.

But there is another employment law issue: Turpel-Lafond is presently a Professor of Law at UBC’s law school. Integrity is fundamental to the reputation of the law school and lawyers are required to act with integrity and can be disciplined by Law Societies for failing to do so.

If any employee acts, in a public way, with a lack of integrity, that can be cause for dismissal. Especially if the employee’s lack of credibility — and refusal to address legitimate queries — starts to rub off on the employer.

One would think that UBC has a difficult decision. It will be telling how it responds. So do the universities which provided her honorary degrees and are now reconsidering them. If UBC’s reputation is affected among its students, alumni, funders or the broader community by dishonest actions of any employee, that can be cause for that employee’s discharge. If any employee, particularly one in a public position, behaves dishonourably so as to bring embarrassment to their employer, that too can be cause.

Increasingly in my practice, employer clients are meeting with me to discuss the dismissal for cause of high-profile executives who conduct themselves so as to bring dishonour or embarrassment to their organization. That is, perhaps, the most rapidly increasingly cause for discharge that I am seeing across this country.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.