Kemosabe Is No Friend To Nova Scotias Native Peoples

Chief. Geronimo. Pocahontas. Tonto. Kemosabe. What socially aware person would think any of these labels is an appropriate way to address a person of aboriginal heritage? Whether in the workplace or anywhere else, we know intuitively that these sorts of labels are likely to be offensive.

The Nova Scotia Human Rights Commission and Court of Appeal, however, seem to think there are circumstances when at least one of those words, "kemosabe", is acceptable.

In Moore v. Play It Again Sports Ltd., a Nova Scotia Board of Inquiry under the Human Rights Act analyzed a complaint of workplace harassment over the employers use of "kemosabe" towards a native employee. The Board of Inquiry determined the employer's principals, in using "kemosabe", never intended any other meaning than "friend". It was an expression they had used their entire lives, both in their home and at work. It was never their intention to use it as a racial slur.

The Board of Inquiry also found that some members of the local native community either didn't recognize the word at all or were indifferent to its use. And, most importantly, it decided the complainant was not actually offended during her employment by the employer's use of the word. As a result, the Board of Inquiry dismissed the complaint of harassment and the Court of Appeal upheld that decision.

The matter has now been appealed to the Supreme Court of Canada so the last word on employers' use of terms such as "kemosabe" has yet to be spoken. That can only be a good thing because, in my view, both the Board of Inquiry and the Court of Appeal missed an opportunity to make a statement about inappropriate workplace conduct. In doing so they may have inadvertently sent the message that the use of such labels is acceptable. That, of course, would be a thoroughly regrettable result.

In the February 7, 2005 edition of Labour Notes (Number 1276), Jordan Winch supported these decisions and urged the Supreme Court of Canada to move towards determining such complaints from the perspective of the speaker rather than the recipient. This would also be, in my view, a most regrettable development.

Where the Board of Inquiry and the Court of Appeal erred, in my view, was in their application of the "notoriously offensive" standard. By my reading, the Board of Inquiry ignored this aspect entirely, jumping directly to an analysis of the history of "kemosabe" and the effects of its use in this case. The Court of Appeal visited the subject but only long enough to state that the word was not clearly, on its face, notoriously offensive.

This case could (and should) have ended with a finding that the use of the term "kemosabe" is, indeed, notoriously offensive. Labels such as this (as well as "Chief", "Geronimo", "Pocahontas", and "Tonto" to name a few) are offensive because they have three obvious impacts.

First, they differentiate between native and non-native peoples on the basis of their race. This is the "singling out" effect.

Second, they conjure up stereotypical, Hollywood-ized images incorrectly applied to people of aboriginal heritage. The emotional burden of these sorts of false images is one which is likely borne by every member of a minority group at some point or another. As the Board of Inquiry accurately stated, it is the insidious combination of the epithet with patterns of economic and social discrimination which lead to the subordination of the target.

Third, they expose the individual to the likelihood of further discriminatory treatment by others. This might be called the "piling on" effect and it is one which seems especially likely to occur in the workplace. If one person in the workplace uses the nickname "the chief" for an aboriginal co-worker, the chances are good that others will imitate that behaviour.

Is it sufficient to determine, as did the Commission, that the historical origin of the word "kemosabe" actually had a positive connotation? Is it sufficient to rely on a small sampling of local native people who were either unaware of the word or were indifferent to its use? Is it sufficient to judge whether the complainant was actually offended at the precise moment when the label was used? Is it sufficient to engage in an analysis aimed at determining what the employer's intention was when using the word?

The historical origins point is easily dispensed with. That "kemosabe" might have carried with it a positive connotation in a decades-old television series is of no consequence. It is the impact, today, of using it in relation to a person of aboriginal heritage that is important. Regardless of their origins or past usage, such terms are today little more than a slang label for native persons. This, of course, is exactly the sort of thing that human rights legislation is intended to prevent.

That the character Tonto may have been a respected player in the television series is also irrelevant. Consider the other labels I've listed, above. Each of them could be said to relate to a title, person, or character which at some point would have been the subject of some respect or reverence amongst native peoples. That doesn't change the fact that, today, giving the aboriginal fellow in your office the nickname "the chief" would tend to have the negative impacts I've mentioned. To paraphrase one of the witnesses at the Board of Inquiry, over the years these terms have become a form of mockery.

The Board of Inquiry's survey of a few local native people to determine their reaction to the label should also be viewed with skepticism. Couldn't a racial slur be completely unknown, at least initially, among the targeted group? And, if so, would that make it any less discriminatory? If you were the targeted person, would you feel any less offended because you only discovered afterwards that your employer's name for you was a derogatory one based on your heritage? Does the fact that you didn't know the significance of the label make it appropriate for your employer to use it?

If the question of whether the complainant was offended at the time must be taken into account, it should be considered only at the stage of fashioning a remedy. That is the point when the degree of the impact on the individual has a role, not in determining whether the conduct was discriminatory.

Finally, as we all know, determining a complaint of racial discrimination based on the intention of the speaker is completely fruitless. The many reasons for this would take up much more space than I have available here. This sort of approach would be out of step with decades of well-founded legal reasoning in the area of human rights. The only thing achieved by focusing on the speaker's intent is to provide the speaker with a convenient opportunity to manufacture an explanation for the offensive conduct.

I have a suggestion for the Supreme Court of Canada in its review of this case. Take a close look at the phrase "notoriously offensive" and ask yourselves whether that's just another way of saying that the reasonable person would (or should) know the label would be offensive and is, therefore, inappropriate. In doing so, formulate some criteria to be used by human rights tribunals and courts in determining whether a label is discriminatory. For example, would the use of the impugned label be likely to:

1. differentiate the member of the target group solely on the basis of a prohibited ground such as race;
2. conjure up stereotypical images often mistakenly applied to members of the target group; or
3. expose the member of the target group to the likelihood of further negative treatment?

In my view, if the answer to any one of these questions is "yes", then I submit that the term is notoriously offensive and, therefore, discriminatory. And that, I submit, is exactly what the Supreme Court of Canada should find in Moore v. Play It Again Sports Ltd.