It’s with a tad bit of irony that the professions charged with fighting inequities and combating racism, both explicit and institutional, is itself one of the most regressive communities there is when it comes to these same challenges.
In part this is likely due to the independence of the legal professions, which results in a decentralized industry that is highly autonomous, but also likes to act with impunity. Most legal practices do not have access to best practices in human rights, or how to create an inclusive work environment. In fact, most of these practices are still largely exclusive to members of the legal community who are visibly identified as physically different on the basis of ethnicity, national origin or race.
Many of us know these realities anecdotally, having lived a lifetime of being racialized in Canada, and easily able to identify the subtle and often unintentional signs of barriers. Unfortunately, anecdotes are not enough.
Between 2012-2015, the Challenges Faced by Racialized Licensees Working Group in Ontario conducted an extensive consultation, involving meetings with over 1,000 people, in the legal profession, and outside of it. The qualitative and quantitative data they received confirmed there are widespread barriers experienced by racialized licencees at all stages of the career.
The outcome of this research was a report that included 13 recommendations:
- Reinforce the professional obligations lawyers and paralegals through a review and amendment of the Rules of Professional Conduct and Paralegal Rules of Conduct to include obligations towards equity, diversity, and inclusion
- Work with interested partners to develop model policies and resources
- Require every licensee to adopt and abide by statements acknowledge the obligations toward equity, diversity and inclusion, including policies and self-assessments for firms with over 10 licensees
- Measure progress annually for all legal workplaces with 25 licensees or more
- Continue to collect qualitative data every 4 years
- Publish an inclusion index for each of these workplaces with at least 25 licensees
- Conduct inclusion surveys
- Develop and implement progressive compliance measures for workplaces that experience difficulties
- Offer CPD on equity and inclusion
- Include cultural competency, equality and inclusion as part of the Licensing Process
- Provide support to racialized licensees through mentoring and networking
- Revise the processes for dealing with discrimination and harassment
- Continue to monitor and assess the law society’s own internal policies, practices, and programs
There are 5 main areas of action that these recommendations are intended to be used to create a strategic framework for action:
- Accelerating a culture shift within the legal community
- Measuring progress in promoting diversity, equity and inclusion
- Educating licensees for change
- Implementing supports to firms and marginalized lawyers
- The law society itself leading by example
The recommendations were debated last Friday, and adopted in full. Despite the hard data in the report, adopting the recommendations still required a hard fight.
Attempts were made during the Law Society of Upper Canada’s Convocation to water these recommendations down. For example, a motion was introduced to modify the obligation to abide by equity, diversity and inclusion principles as described in recommendation 3 as simply “encouraging,” instead of “requiring.” This motion failed.
Eventually the resistance was overcome, in part through deeply personal anecdotes of racism and discrimination by racialized benchers themselves. Some of these benchers were so overcome with emotion that they were brought to tears. This wasn’t an easy debate.
Another motion was introduced, and passed, to also extend these recommendations to all equity-seeking groups. Although intersectionality is always important, and was one of the factors identified on page 4 as exacerbating racial discrimination, there is a concern that some firms will use metrics around some types of diversity to mask or hide other forms of discrimination.
This vote does symbolize in some very important ways that the legal professions in Ontario is ready to take a very difficult look at the barriers that do exist. Progression in law is not one that is solely based on merit, as much as we would like to believe that it is.
Nepotism is rampant, and firm “culture” and “fit” are known euphemisms used to exclude licensees who are otherwise more talented, of higher intelligence, and better suited for the job.
Adoption of these recommendations means that the legal community may be finally ready to recognize that it’s not diverse lawyers who need to adapt to the existing law community, many of its members who were called before the Charter even existed. It’s the legal community that needs to change and adapt to the realities of the 21st century.
Frankly, it’s about time.