Equality, Diversity and Inclusion: Some Lessons From South of the Border?

Earlier this month, the new president of the Law Society of England and Wales, Jonathan Smithers, used the occasion of his inaugural speech to emphasize the importance of a diverse and inclusive legal profession, stating:

Equality, diversity and inclusion are absolutely at the forefront of this Society’s work, interwoven in all that we do. Our profession must reflect the country as it is and draw talent from each and every part. Social inclusion and mobility are currently in the spotlight. I am proud of the progress we have made over the last decades but do not in any way shy away from the task ahead, for there is much still to accomplish.

Equality, diversity and inclusion have also recently topped the agendas of Canadian law societies. A few examples come to mind:

• Upon being acclaimed as Treasurer of the Law Society of Upper Canada for a second term, Janet Minor highlighted the development of a renewed Aboriginal Strategy focused on reconciliation and the continuing work by the Challenges Faced by Racialized Licensees Working Group, which is posed to deliver a final report with recommendations in the fall;
• In November 2014, the Council of the Nova Scotia Barristers’ Society approved six regulatory objectives, one of which is “promot[ing] diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system”;
• In its Amended Response to TWU’s petition challenging its decision not to approve TWU’s proposed law school, the Law Society of British Columbia argues, among many other things, that it has a statutory duty to consider whether approving a law school that discriminates against lesbian, gay and bisexual people is consistent with its statutory duty to act in the public interest.

Notwithstanding the significant rhetorical committments and complementary actions by Canadian law societies on issues of equality, diversity and inclusion, it is clear that there is still considerable work to be done. One particularly troubling issue is the chronic underrepresentation of women and racialized individuals in the ranks of law firm equity partnerships. I am not aware of any comprehensive national statistics, but the following snapshot from Ontario is presumably representative of gloomy trends across the country:

• 43% of racialized licensees, compared to 3% of non-racialized licensees perceive ethnic/racial identity as a barrier/challenge to advancement (Source: LSUC Challenges Faced by Racialized Licensees Working Group Consultation Paper)
• Women account for more than 50% of Ontario law graduates but less than 35% of lawyers and about 20% of all partners in law firms (Source: LSUC Justicia Project Fact Sheet)

It was with these trends in mind that I recently read an article authored by three American academics – Russell Pearce, Eli Wald and Swethaa Ballakrishnen – titled “Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships”. The abstract describes the core argument presented in their paper as follows:

…a significant barrier to systemic diversity at the law firm partnership level has been, paradoxically, the insistence on difference blindness standards that seek to evaluate each person on their individual merit. While powerful in dismantling intentional discrimination, these standards rely on an assumption that lawyers are, and have the power to act as, atomistic individuals – a dangerous assumption that has been disproven consistently by the literature establishing the continuing and powerful influence of implicit and institutional bias. Accordingly, difference blindness, which holds all lawyers accountable to seemingly neutral standards, disproportionately disadvantages diverse populations and normalizes the dominance of certain actors – here, white men – by creating the illusion that success or failure depends upon individual rather than structural constraints. In contrast, we argue that a bias awareness approach that encourages identity awareness and a relational framework is a more promising way to promote equality, equity, and inclusion.

In advocating a bias awareness approach, the authors suggest, among other things, that an integration-and-learning framework be adopted that includes empirical learning, consciousness raising and community building backed by concrete action that would “allow large law firms to become sites of inclusive community consciousness building.”

Moreover, the authors advance a number of practical steps that law firms could take, including:

• Training “on how to work collaboratively and conduct evaluations without implicit bias, how to communicate about work across difference, and how to be an effective mentor….[that] would take place in the context of actual assignments by senior associates and partners who would train more junior colleagues in a relational team environment. In turn, large law firms would have to track and monitor the training their lawyers receive, as well as more consistently track the assignments handed out, to ensure that all firm lawyers, irrespective of identity group, receive equal training.”
• “[T]he development of additional assessment tools alongside the billable hour that can more accurately measure the input and output of BigLaw lawyers, such as the quality and timeliness of work product, responsiveness, effective communications with law firm’s team members and the client, and client satisfaction.”
• “[S]ystematically training all BigLaw lawyers to develop business and directing additional resources to benefit firm lawyers who initially possess fewer social capital connections and relationships.”

These suggestions, along with others in the article, strike me as useful interventions for Canadian law firms to consider to the extent that they haven’t already done so. Indeed, a bias awareness approach would seem to be consistent with our legal community’s commitments to substantive, over formal, equality.

The article also indirectly emphasizes two things about the regulatory environment when it comes to equality, diversity and inclusion in advancement: (1) law firms, in addition to law societies, must be centres of innovation and action; and (2) to the extent that law societies are involved, there is value in adopting pro-active compliance-based regulatory efforts that can assist firms in developing best practices to complement the traditional rules-based discipline currently in place and which is aimed at punishing individuals who breach minimum standards. It is a positive sign that, as noted in a recent Law Times article, compliance-based entity regulation is already firmly on the agenda at the Law Society of Upper Canada and is currently being implemented by the Nova Scotia Barristers’ Society.

New, ambitious approaches are clearly needed. Let’s hope that Canadian law firms and law societies are up to the challenge.