More Than Meets the Eye

When speaking or writing about diversity in the legal profession, the conversation usually focuses on gender, sexual orientation or race and ethnicity. We know that the legal profession does not visibly reflect the makeup of Canada’s general population. This was in fact a conclusion of the Canadian Bar Association’s 2013 Demographic Trends report:

According to the localized statistics available, progress on increasing diversity in the legal profession is not consistent with the make-up of the general population.

We also know that multiple barriers remain for racialized members of the legal profession. The 2014 LSUC report, Challenges Facing Racialized Licensees identified that the numerous challenges faced by racialized licensees at all career points have a negative impact upon their career trajectories.

An explanation sometimes offered to explain why law firms lack diversity is the effect of unconscious bias that essentially causes like to seek out or favour like. (See for example, Going “All In” on Diversity and Inclusiveness by Kathleen Nalty or Is unconscious bias affecting efforts to achieve greater diversity within the legal sector? by Dan Robertson.)

The proposition is that due to an unconscious bias (such as affinity bias), law firms tend to hire lawyers who are like those doing the hiring, thus perpetuating an ongoing lack of diversity within the profession. Intuitively, this makes sense. But this would apply only to those who actually make it through law school.

Some recent commentary has focused on how law schools, through tuition fees and grading policies are contributing to a lack of socio-economic diversity in the legal profession. For example, in the blog post, How the Bell Curve bleaches out intellectual diversity, Michael Motala writes:

Think of classmates who have to take care of children, work a part-time job to supplement their income, or come from a low-income family. It is intuitive that socioeconomic status plays a causal role in academic performance, taken together with other factors of course. The premise is that performance and wealth are correlative, and this relationship is reinforced by the current mode of evaluation. And so curve mirrors and reproduces the capitalist system, rewarding those who already have privilege at their disposal and entrenching the cognitive-cum-capitalist elite.

…The curve is also an instrument of selection and admission to the business elite. Grades are a sifting mechanism, and while Bay Street recruiters have added diversity to their sales pitch, it is in the technical “check-the-box” rather than substantive in nature. While corporate giants have recently appropriated LGBT rights, nothing is said or done about disability, gender orientation or socioeconomic background.

A recent satirical post in the University of Toronto’s law student publication, Ultra Vires, also points to the issue of social class and socio-economic diversity. The not so subtle post, Meet our students: Todd’s Story followed on the heels of an announced increase in law school tuition at U of T and suggests that both the economic and social class privilege of some of the student body, at least, lessen the impacts of such tuition hikes.

Jonathan Kay’s Walrus blog post, Diversity’s Final Frontier points out that discussions about diversity (whether in Cabinet or in corporate leadership) rarely touches on issues of social class. He explains:

…people who fight hard, in relative obscurity, just to keep their head above water; and who don’t have the luxury of worrying about some of the more rarefied glass-ceiling controversies that get debated on Bay Street and in Ottawa.

From a “diversity” perspective, these Canadians represent the most underrepresented group in the country. Yet they’re largely invisible….

Kay concludes that it’s relatively easy to focus on visible diversity but to achieve a true representation of Canadian society, it is more important to focus on invisible diversity.

This would certainly apply to the legal profession as well. At all stages, from law school admission requirements, to articling selection processes to firm hiring practices and participation in professional leadership opportunities, there remain barriers in place that effectively sort out those whose diversity isn’t obvious.

High tuition fees and limited financial supports mean many of those without access to credit or parental resources will never even consider applying to law school. For those who do apply and gain entry into law schools, concurrent parental or work responsibilities may impact their grades and thereby limit their employment options post-degree as firms continue to focus on top academic performers. Even where diversity is a factor in hiring, it is most often limited to visible diversity. Access to leadership opportunities, whether in bar associations or law society governance is often limited to those lawyers who can afford to take the time to volunteer or campaign for office and have the support of others like them.

A representative legal profession would surely include not only those with visible and easily measurable characteristics, but also those whose diversity may be invisible. That will be harder to achieve, but if diversity in all respects is the target for the legal profession, we must be completely inclusive.