Shining Light on Exclusion Will Assist Diversity

Despite 5 years of research, detailed consultations, and ample careful thought, the resistance towards the Challenges Faced by Racialized Licensees Working Group’s recommendations continues to grow among the fringes of the legal profession, although some of the most vocal voices do not practice at all, and are far removed from the realities that most practitioners in Ontario face today. Sadly, the Statement of Principles that has to date attracted the greatest scrutiny is still only one part of a larger program underway.

For those of us who have been involved in supporting these initiatives, and who are better informed of the contemporary challenges of the profession, we have a responsibility to speak up with greater research and materials to help the rest of the bar better explain the strategies that are underway. Five years ago I proposed that law firms to voluntarily disclose the diversity of their firm. This suggestion will now become a mandatory requirement for firms of a certain size under the new strategies underway.

The challenges around diversity are not entirely unique to the legal industry. Recent commentators have pointed out the lack of diversity in leadership in medicine, the space program, the arts, and in Canadian businesses generally. The explanation is not lack of talent. In all of these areas, including law, there are bright, intelligent, skilled and ambitious individuals who are eager and willing to move into these roles. But for a variety of reasons, typically institutional barriers that can be found throughout society, these individuals encounter far too many obstacles to make these career goals feasible.

There is one area of Canadian society that has observed considerable improvement. Data from the Treasury Board of Canada Secretariat and the Privy Council Office analyzed by the Institute for Research on Public Policy’s Policy Options demonstrates that measures utilized by the federal government have had a marked effect on the workplace composition.

The manner in which that was achieved was not a mandatory quota system, but rather an obligatory public disclosure requirement under the Employment Equity Act. Andrew Griffith explains,

Overall, the historical and current data show that the transparency- and reporting-based approach of the Employment Equity Act has largely succeeded in improving representation of women, visible minorities and Indigenous people both at the executive level and among all employees in the public service. The gaps between among executives and representation overall should continue to shrink, given the demographic profile of these groups. The name-blind recruitment pilots may provide insights on how to further improve hiring practices and representation.

The successes of the Act have prompted the federal government has introduced Bill C-25, to require publicly traded corporations to report on diversity data and their policies. A similar initiative, Bill 114, is also underway in Ontario. All these improvements have been observed across the board in many different forms of diversity, there are some areas that continue to lag.

A new report from Ryerson’s Diversity Institute notes that while the number of women on large corporate boards has grown in the past 5 years, the same growth is not experienced by visible minorities. Nicholas Keung of The Star covered the report,

“Diversity is more than gender,” said Wendy Cukier, the institute’s founder and professor at the Ted Rogers School of Management, at a forum on advancing diversity and inclusion in Canadian Business. “If you look at the minority representation on boards, it is not a pretty picture.”

Although the representation of women has improved, the gains are primarily made by white women, said Cukier.

“While equally represented in the workforce, white women outnumber racialized women 16 to 1 on corporate senior management teams,” noted Cukier.

What’s necessary for the change is for information to be tracked, and even universities are coming to the realization that tracking race-based statistics to better understand the lack of representation and participation. Another way of putting it would be, what gets measured gets managed. What might be more important is distinguishing measures of representation within law firms, and the metrics behind what they mean. The bare numbers now required by some law firms will not tell the complete story, and will only be the starting point for broader conversations in the legal profession about what can’t be measured.

Of course none of this is a mystery for the hundreds of racialized licensees who cooperated and assisted the Working Group with their investigation. We’d like to say the problem starts in law school, but in reality it starts earlier than that. It starts in the exclusive and homogeneous private schools, where children are protected shielded from the regular experiences of mainstream Canadians. And by mainstream Canadians in 2017, we mean racialized Canadians, as the 2016 census data released last week illustrates,

Most people in Canada’s biggest city now identify as visible minorities, as new census data shows increasing diversity in Toronto and many of its neighbouring suburban areas.

More than half of respondents to the 2016 census in the City of Toronto — 51.5 per cent — said they’re from visible minority communities, a milestone that was narrowly missed when 49 per cent identified that way in 2011.

It continues by the law firm partners, who are of an entirely different generation, when Canada was not as diverse as it is today. It was only 50 years ago that Canada explicitly prohibited non-white immigration through numerous legal measures. Unlike other immigrants over those five decades, some were treated differently just because of the way that they looked, and this trend is not entirely different today.

The recent census data confirms this broader societal problem. Laurie Monsebraaten explains,

As the face of Canada grows more diverse, the income gap between residents who identify as visible minorities, Indigenous or recent immigrants and the rest of Canadians remains a yawning chasm, data from the 2016 Census shows.

More than 22 per cent of Canadians — including 51.5 per cent of Torontonians — reported being from a visible minority community in 2016, up from 16.3 per cent nationally in 2006.

In Toronto, more than 55 per cent of visible minority residents were living on less than $30,000 in 2016 compared to fewer than 40 per cent of the rest of the city’s population, according to census data provided to the Star.

While almost 14 per cent of non-visible minorities in Toronto reported total incomes of $100,000 or more, just 4 per cent of people from visible minority communities had access to that amount of cash in 2016.

This is our lived reality, and the reality of those we have grown up around. It is literally a lifetime of people questioning your intelligence, your credentials, your aptitude, all based on your appearance.

 

The only way the remainder of the profession will come to that realization is with cold, hard facts. The fact that are gleaned generally from societal trends, as indicated above, as well as investigations into dynamics of the legal profession, but also from greater reflections on who we are as a legal community.

In part, the reflections will occur in legal workplaces through the completion of self-assessments of diversity performance. The more powerful impact will come from the reflections that occur in private, hopefully prompted by the CPDs provided by the law society.

Raj Anand, a bencher and member of the Working Group, shared the following,

As I said at Convocation on December 2, 2016, systemic racism and other human rights issues are difficult to acknowledge and even more difficult to discuss. Attacking it means attacking white privilege that pretends there is no issue and perpetuates disadvantage for women and minorities. But as I said, it is no longer an option to ignore the issue; it is vitally necessary if we are going to tackle the biggest problem that we have in the legal profession and in society generally when it comes to equal and respectful relationships – not knowing what we don’t know about practices that we have taken for granted in business and professional relationships, but which have unintended consequences. The Law Society requirement is having the intended result of forcing licensees to confront what they are or are not doing to create healthy work environments, including positive steps, all of which are existing obligations under the Human Rights Code.

You may recall from the December 2 debate that I pointed to a longstanding requirement in the Lawyers’ Annual Report for real estate lawyers, borne out of the asserted lack of knowledge (not knowing what they don’t know when mortgage fraud takes place) of the “red flags” of mortgage fraud. There [were] several questions asking for confirmation that real estate lawyers have brought themselves up to speed on relevant educational materials to learn what some said they did know. One question specifically asks whether they understand their obligation to take steps to prevent mortgage fraud…

I haven’t heard that answering that question for the last several years chokes freedom of expression, or that conscientious objectors should be permitted not to answer.

The reason why I state that equality, diversity and inclusion is an issue of competence is that lawyers should know the substantive law and their existing obligations in these areas, as well as understand the systemic barriers that exist within the legal system they operate. For example, access to information documents obtained last week demonstrate clearly that there are clear racial disparities in pre-trial custodial time,

The data, which spans 2011 to 2016, includes more than 20 categories of crime, ranging from homicide to fraud to impaired driving. In the most recent data, from 2015-16, there were just over 6,000 cases involving Black people and more than 31,000 cases involving white people. Some of these people would have been in custody on more than one occasion.

In more than half the categories in the bail data, Black people were in jail, on average, longer than white people, although in a few cases not as long as other minority groups.

For those of us who have made it through law school and beyond, it has already been a journey of perseverance. We know what we are capable of, and we have repeatedly demonstrated it even with the metrics that are imposed on us – through standardized testings, grades, legal competitions, and even billable hours. And despite excelling beyond our peers in all other regards, it doesn’t actually come as a surprise to us when we’re compensated less or provided less opportunities.

For those of us that are racialized and were born here, that’s been our reality our entire lives.

The sad reality is that some people will have to face that their accomplishments were not solely achieved through merit, but rather based in part on the virtue of who they were born to. That might be a difficult realization, but it’s the one that is a necessary precursor to accepting measures that will remove systemic barriers for the generations to follow.

Comments

  1. Kristen Liesch had this piece in Canadian Lawyer this week, looking at what actually works in improving racial diversity in a law firm.

    The first and foremost of these is as follows:

    1. Accountability is a powerful driver when it comes to diversity and inclusion. Start by getting a baseline of your firm’s demographics: Who are you hiring and at what numbers? Who are you promoting, at what rates and to what positions? Publish the results internally (and externally, for added punch) along with targets and timelines for further reporting. When you have a clearer picture of where you stand, you can measure the effectiveness of any implementations against that starting point. You may also be able to pinpoint where things are going wrong; you will thus be better equipped to create targeted, tailored strategies.

    “Sunshine,” or the raw numbers, is where the change actually happens. Even then, it only happens when the members of the community where change is occurring recognize their obligation, duty, and responsibility to effect that change.

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