Equality, Diversity and Inclusion – What Can We Agree on and What Can’t We?

I recently attended part of RODA’s 5th Annual Diversity Conference which was entitled Resilience in Challenging Times. I was particularly interested in hearing the panel Building Consensus: The Future of EDI at the LSO. There were four panelists; two from the Stop the SOP slate and two who had been members of the Law Society Challenges Task Force.

The context for the panel appeared to me to be intentionally post-Statement of Principles, to address questions beyond the debate about compelled speech and belief. Perhaps not surprisingly, there was little if any consensus and little apparent attempt to find any.

This column is an attempt to reflect on issues that continue to be contentious despite the Statement of Principles requirement having been replaced by a requirement to acknowledge human rights obligations under the Rules of Professional Conduct.

Talking to Strangers

In a recent podcast by Ezra Klein, there was a discussion with Professor Danielle Allen who directs Harvard’s Edmond J. Safra Center for Ethics. Professor Allen is described as a political theorist, and a philosopher, and the principal investigator of the Democratic Knowledge Project. She is the author of Talking to Strangers[1] written in 2004 which focuses on interracial distrust in the United States. Her discussion with Ezra Klein was about the importance of democracy as a core value.

In her prologue in Talking to Strangers, Ms. Allen says that “Within democracies, … congealed distrust indicates political failure. At its best, democracy is full of contention and fluid disagreement but free of settled patterns of mutual disdain. Democracy depends on trustful talk among strangers and, properly conducted, should dissolve any divisions that block it.”

Ms. Allen talks about the concept of political friendship, not in the sense of “buddy movies” as she puts it, but rather as a form of citizenship supportive of equal human dignity and the protection of liberty.

She writes:

Political friendship begins from this recognition about what we share with the people who live around us and in the same polity. It moves from this recognition of a shared horizon of experience not to a blind trust in one’s fellow citizens but rather to a second recognition that a core citizenly responsibility is to prove oneself trustworthy to fellow citizens so that we are better able to ensure that we all breathe healthy air. But in order to prove oneself trustworthy, one has to know why one is distrusted. The politics of friendship requires of citizens a capacity to attend to the dark side of the democratic soul.

There is power to the language and concept of “the dark side of the democratic soul” and to the idea that “one has to know why one is distrusted”. We are all skilled at knowing why we distrust the “other”. Contempt for the “other” is all too easy. What is hard is a genuine attempt to explore and understand the perspective of the “other” whatever that may turn out to be.

In the podcast, Danielle Allen talks principally about democracy and the practice of democracy. Her approach is full-throated celebration of democracy. As she puts it, she considers that democracy is the “single best political form available to human beings for maximizing human empowerment and permitting every person to develop to their full potential”.

Equal human dignity, the protection of liberty and democracy

A charitable understanding of contemporary debate is to see a contest between equality and liberty with different weightings of each value by different people. On one side, there is a belief that there are unacceptable inequalities and that there is no real liberty interest in opposition to righting those wrongs. On the other side, there is a belief that that human liberty ought not to be diminished in order to address what are said to be relatively insignificant breaches of equality.

Of course, it is a trivialization to say that all that is in play is a competition of values. Perspective matters as well as values. How one has been affected and what one has seen affect assessments of impairment of liberty and impairment of equality and of their relative importance. And it would be foolishly naïve to assume that everyone attempts to approach hard issues with a good faith values based approach without self-interest or bigotry. And there are not just two core values in play.

What I take from Danielle Allen is the need to understand what may motivate a good faith view that is different from one’s own and what it is about one’s own beliefs that offends the other and why. Ms. Allen would not say that one shouldn’t assess and evaluate the views of others but rather that that it is often necessary to do hard work before coming to conclusions.

Ms. Allen’s approach is not naive nor a descent into relativism. She is clear that there are fundamental human rights that are not negotiable and that may not be sacrificed. I do not think that she would say that anyone should have to suffer or debate attacks on their humanity. But her position is that we too often perceive important political issues as being incapable of legitimate democratic difference.

Finding consensus and finding difference

Returning to the RODA panel Building Consensus: The Future of EDI at the LSO, it seems to me that the panel was doomed for more than one reason. The first simple reason is that most of the panelists weren’t there to find consensus. The second reason is not so simple but is, I think, important. While finding points of consensus can be valuable, what is missing is identifying the true points of difference and trying to understand the basis for the differences. Treating democracy as a true third value requires a good faith attempt to understand difference before, where appropriate, standing by the disagreement and concluding that the adverse position is being worthy of distain.

Limited common ground

To start with areas of common ground, no one argues that intentional discrimination is acceptable. Whatever may be believed, no one says that acceptable professional conduct includes intentional discrimination on prohibited grounds.

The role of the Law Society

There is sometimes a suggestion that the Law Society as regulator has no business dealing with intentional discrimination and that this ought to be left to the Human Rights Tribunal. When argued, this appears to be on the basis of a minimalist view of legal ethics and professional conduct. An implication of this approach would be that the Law Society ought not to address criminal, dishonest or criminal conduct as being professional misconduct but rather should leave such matters to the criminal law. No one takes this view. But some seem to think that the Law Society should not act if, for example, lawyers elect not to serve clients based on a prohibited ground such as race. It seems to me that what must explain this inconsistency is that some do not see freedom from discrimination as being a fundamental human right. That would explain treating intentional discrimination as something that is marginal to or outside of professional conduct. If there is another reason to see intentional discrimination as a professional as being wrongful but not properly part of Law Society regulation, I am missing it.

Systemic Discrimination

Once we get past intentional discrimination, we start to get past general consensus and to get to differences. The phrase “systemic discrimination” seems to be a flash point. In debate, it seems commonly to be said (with degrees of outrage) that claims of systemic discrimination must be false and are offensive because a claim of systemic discrimination is a claim of intentional impropriety. I’m not always sure whether this is a genuine concern or a way of attacking the concept by way of a straw-person argument.

The concept of “systemic discrimination” in Canadian law is not new. Over thirty years ago, Chief Justice Dickson for the Supreme Court of Canada stated in Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114 at pp. 1138-39 that (emphasis added):

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job” (see the Abella Report, pp. 9-10). To combat systemic discrimination it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

Saying that there is systemic discrimination is not to say that anyone intends to discriminate. Systemic discrimination is about the effect of established procedures and is not about whether that effect is intended. Of course, intended discrimination is morally worse so far as the actor is concerned. But intention is not a necessary element of systemic discrimination which focuses on the person suffering discrimination.

To repeat what the Supreme Court of Canada said over three decades ago “To combat systemic discrimination it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged”.

It may simply be that the phrase “systemic discrimination” is heard as being a moral castigation instead of the description of a problem. But the essential point is that systemic discrimination refers to effects, not intentions.

Viewed as a practical problem, systemic discrimination seems to me to refer to a state of affairs in which a system (usually hiring, promotion, termination etc.) operates to the advantage of some and to the disadvantage of others without intent necessarily playing any part. On this basis, systemic racism exists where a system operates to the disadvantage of those of a particular “race” – and therefore to the relative advantage of those not of that race.

It seems obvious to me that there is systemic discrimination in the practice of law. There seems to be ample evidence that human beings deal differently with those “like them” than with those “unlike them”. This makes practical sense. People who are ”like me” are more likely to share cultural values and norms. Those from my “community” should be more likely to help me given the greater prospect of a shared community and shared interests. It may be harder work to deal with those who are not “like me”.

There seems to be little dispute that where there is a dominant group, whether by gender, race, ethnicity or otherwise, those of the dominant group or “in group” have an inherent advantage in joining and succeeding with members of that group. While not everyone accepts that “in group” and “out group” behavior exists and matters in real life, most seem to do so.

To take this point further, there is the separate problem of stereotyping. It is not just that “in groups” treat other members of their “in group” differently than members of the “out group”, there are prejudicial differences between how different “others” are perceived. To be blunt, it is clear that there is greater prejudice against black people, for example, than against some other groups. In saying this, I don’t mean to say that this prejudice is necessarily intentional. The problem is that we all make many decisions in our lives on an intuitive basis without always recognizing why we react as we do.

Is there a problem?

The next strong difference seems to me to be around the significance of this problem. While a generalization, it seems to me that it is mostly members of dominant groups who suggest that members of dominant groups don’t much act this way. This is no great surprise. We all tend to think well of ourselves and generally want to do the right thing as we understand it. It isn’t easy to accept that one’s choices may be unintentionally unfair. If one has not experienced discrimination, it is harder to perceive discrimination. We all like to think that we have fully earned our successes. It can be threatening to be told that one’s success may not be fully earned.

But things get better

There is another point which is made as to the significance of both direct and systemic discrimination, namely that there may well be problems but that such is the human condition and that things have improved and will improve over time. Our modern era is said to be similar to recent past times where new groups have become part of the legal mainstream. There is truth to this. There are a number of groups that were previously the subject of discrimination. That said, it seems wrong to accept current injustice simply because it seems that injustice may well diminish on its own. I take the example of Bora Laskin who could not find employment in private practice in the 1930s because he was Jewish. By the 1965, he was appointed a judge of the Court of Appeal for Ontario (although the Rideau Club in Ottawa had only then just started to allow Jewish members[2]). I do not think that it would have been appropriate to respond to the reality of anti-Semitism in legal practice by saying that things will work out, as they mostly have over time. And it is fair to observe that injustice has diminished much more slowly for members of some groups than for members of other groups.

Look only to merit

Some say that it is wrong to apply any test other than merit, that looking scrupulously at merit will overcome prejudice over time and that looking at “identity” at all, rather than solely at merit, is illiberal and problematic. This is the logic that founds claims of reverse discrimination. It has moral power because it calls in aid inherent human dignity and the importance of looking at each person as a person rather than as a member of some group.

The first response is that the point assumes that the status quo is fair assessment of merit. But if there is a “in-group” and unconscious bias then this is not so. This does not necessarily mean intentional discrimination on prohibited grounds.

It is clear in my experience that the children of successful lawyers have a number of advantages. One advantage is that those responsible for hiring will tend to assume that a child is more likely to be successful if a parent has been successful. This is true at the individual level (i.e. where a parent is a well-known successful lawyer) but this also operates at a more general level (i.e. where a candidate for hiring has had life experiences that signal having come from a successful family). This advantage obviously accrues to established “in-groups” and, without malicious intent, can operate to disadvantage on the basis of prohibited grounds.

At another level, there is the issue of unconscious bias. This is the idea that we all make intuitive judgments. There is now a rich literature discussing intuitive or heuristic decision making and the common human errors that arise from such decision-making. Daniel Kahneman[3] is one of the best known writers and thinkers on this topic. In our context, the problem is that we all make intuitive decisions based on experienced patterns and that existing patterns tend to support the status quo. We intuitively see as meritorious those who are “like” those who are currently successful. In addition, we tend to like and trust those who are like us and to be less inclined to favour those who are different from us. None of this is necessarily intentional or evil, just human nature.

There are some who simply dismiss the existence of unconscious bias. There are others who accept that unconscious bias exists but cite research suggesting that unconscious bias cannot be overcome. I’m inclined to accept that unconscious bias may not be capable of elimination but think it wrong to end the analysis at this point. An essential point made by Kahneman is that we have two cognitive processes. The first is “fast” and intuitive, driven by perceived patterns through heuristics. The second is “slow” and deliberative. The two processes may be thought of respectively as being intuition and reasoning. I think that this is one of the reasons that writing reasons is important in adjudication as writing reasons requires “slow” and deliberative thinking to overcome errors in intuitive reactions. Hence, the idea that a first reaction to something simply “won’t write”.

It seems to me that there ought to be common ground around the idea of ensuring non-intuitive deliberative approaches to hiring, promotion and termination in legal practice. For those who accept the idea of unconscious bias, conscious reasoning is a logical correcting approach. For those who doubt that unconscious bias exists, it should be hard to be against thoughtful reasoning.

As a further level, there is the question of what is meant by merit. Merit may simply be a way of generally describing attributes that predict success. If so, it seems clear that being “like” those who are already successful is a good predictor of being successful. Amazon’s attempt to use artificial intelligence to help in hiring decisions makes this clear[4]. The problem is that there is an assumption that it is possible to fairly assess some underlying human attributes or skills that make one person more worthy (i.e. meritorious) than another. I don’t claim that there is nothing to “merit” but rather than “merit” is not as simple as it seems. And there is the further point that “merit” is likely not one single thing and that recognizing different strengths may be a better reflection of human dignity and worth. And recognizing that we live in a diverse society, the ability to effectively understand and serve different populations is an element of merit.

At a deeper and most difficult level, there is the fact that “opportunity” is not fairly distributed in society generally. For example, Black children are disproportionately in foster care and in lower academic streams[5]. Similarly, Black men more often interact with the justice system at all levels of society[6]. The intergenerational harm suffered by Indigenous people is now well known. Earlier discrimination and resulting social and economic difference can give rise to different abilities subsequently. “Neutral” equality of opportunity at hiring, for example, fails to deal with prior inequality of opportunity. Making “pure” merit-based employment decisions does nothing to address prior inequity.

The role of the Law Society beyond issues of direct discrimination

It should be understood that the LSO Rules of Professional Conduct now require that lawyers not discriminate in the provision of services or in their employment practices on prohibited grounds.

Rules 6.3.1-1 provides that:

6.3.1-1 A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

6.3.1-2 A lawyer shall ensure that no one is denied services or receives inferior service on the basis of the grounds set out in this rule.

6.3.1-3 A lawyer shall ensure that their employment practices do not offend rule 6.3.1-1, 6.3.1-2 and 6.3-3.

While some suggest that the Law Society ought not to address direct discrimination, I do not think many take that view. Section 33 of the Law Society Act requires that lawyers and paralegals not engage in professional misconduct or conduct unbecoming a licensee.

But what about unintentional failures to hire, promote and terminate without bias on prohibited grounds? And what about unintentional failures to provide equal opportunity to grow and flourish? For those who deny that this failures happen in any meaningful way, the following discussion is of limited relevance. But even if it is accepted that there is a problem of unintentional discrimination, not everyone accepts that the Law Society has a proper role.

I start by observing that Canadian human rights law does not only protect against direct discrimination.

Part I of the Human Rights Code establishes freedom from discrimination including sections 1 and 5(1):

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Section 11(1) addresses constructive discrimination providing that:

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

Over twenty years ago, the Court of Appeal for Ontario held in Ferrel v. Ontario (Attorney General of) (1998), 42 OR (3d) 97 that:

… systemic discrimination relating to employment was, before the enactment of the 1993 Act, and still is, prohibited by the Human Rights Code … Every individual has the right not to be systematically discriminated against in relation to employment ….

There is no doubt that Ontario human rights law does not stop at intentional discrimination. There is no doubt that Ontario law prohibits constructive (i.e. systemic discrimination) irrespective of intent.

So the simple question becomes whether the Law Society has jurisdiction to address systemic discrimination or whether the Law Society must leave systemic discrimination to the Human Rights Tribunal[7]. I do not see a rationale for the conclusion that intentional discrimination on prohibited grounds should be properly treated as professional misconduct while a breach of human rights law by systemic discrimination should not be treated as professional misconduct.

In my view, the decision of the majority of Supreme Court of Canada in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (“Trinity Western”) clearly establishes that the Law Society of Ontario properly addresses discrimination in the legal workplace. The majority held in Trinity Western that (emphasis added):

 [21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole. The LSUC is not limited to enforcing minimum standards with respect to the individual competence of the lawyers it licenses; it is also entitled to consider whether accrediting law schools with inequitable admissions policies promotes the competence of the bar as a whole.

[23] The LSUC was also entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs. Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest.

The majority of the Supreme Court of Canada has held that the Law Society properly addresses equality and human rights, competence and diversity within the profession in a decision to accredit a law school. A fortiori, the same must be true matter of law in the regulation of the professional conduct of lawyers and paralegals. Said simply, compliance by lawyers and paralegals with their human rights law obligations in legal workplaces is undoubtedly, in my view, properly addressed by the Law Society as a matter of regulation of professional conduct.

The necessary implication of this conclusion is that the Law Society’s work to better ensure that legal workplaces are free from both intentional discrimination and systemic discrimination, intentional or not, is fully justified. It is, of course, always open for debate what measures are best suited to address discrimination within the professions. But that is different from concluding that there is no such discrimination or that there is no proper role for the Law Society.

Where I think there are more serious questions to be addressed is with respect to discrimination suffered prior to becoming a lawyer or a paralegal. For society as a whole, equality of opportunity matters and must be addressed from the beginning of everyone’s life. But what about for the legal profession and its regulator?

In Ontario, the Law Society is charged with carrying out its responsibilities with duties to “maintain and advance the cause of justice”, “act so as to facilitate access to justice for the people of Ontario” and “to protect the public interest”[8].

It seems to me that these duties justify addressing discrimination on prohibited grounds suffered prior to licensing as well as after licensing on the basis that doing so generally advances the cause of justice and the public interest. More specifically, it seems to me that a fundamental goal of regulation of the legal professions is to better ensure an administration of justice that supports a democratic society through peaceable and effective resolution of disputes. This is, I think, what the majority was talking about in Trinity Western when they said that “Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs”.

None of this is to suggest that what ought to be done with respect to discrimination suffered prior to licensing is easy or obvious. But I believe that addressing and ameliorating prior discrimination is not mere irrelevant “politics” or “ideology” as some seem to claim.

Where does this take us?

I have argued in this column that we should seek to both find consensus and to clarify difference. Finding consensus allows us to move forward at least in some respects.

Finding difference allows all of us to better assess whether differences can be resolved through better understanding. And where differences cannot be resolved, understanding differences assists in understanding other legitimate philosophical perspectives – as well as clarifying where there is unacceptable difference[9].

As a tentative list, I suggest that it would be useful to determine whether there is consensus or difference in respect of the following propositions:

1. Intentional discrimination on prohibited grounds occurs within the legal professions
2. It is often difficult to show that there has been intentional discrimination on prohibited grounds. Those who intentionally discriminate generally know better than to announce their misconduct.
3. Well intentioned lawyers and paralegals make decisions in their workplaces that cause unfair advantage and unfair disadvantage on prohibited grounds without being aware that they are doing so.
4. Systemic discrimination is not about discriminatory intentions. It is about discriminatory effects.
5. Systemic discrimination (i.e. indirect or constructive discrimination) on prohibited grounds occurs within the legal professions
6. It is appropriate for the Law Society to require lawyers and paralegals to take reasonable steps to address the following in legal workplaces:
   1. intentional discrimination on prohibited grounds;
   2. unintentional discrimination on prohibited grounds; and
   3. systemic discrimination on prohibited grounds.
7. The Law Society properly addresses intentional discrimination on prohibited grounds as professional misconduct.
8. The Law Society properly addresses systemic discrimination on prohibited grounds as professional misconduct.
9. The Law Society properly uses regulatory tools, other than just discipline proceedings, to reduce and mitigate intentional, unintentional and systemic discrimination.
10. It is appropriate to assess the demographic results of employment processes and the experiences of lawyers and paralegals in legal workplaces in order to help discover and address prohibited discrimination, whether intentional or not.

_______________________

[1] The full title of Ms. Allen’s book is Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education

Malcolm Gladwell has recently released his new book also called Talking to Strangers: What We Should Know about the People We Don’t Know. The two books should not be confused.

[2] Robert Fulford, The 1960s, when Canadian Jews found acceptance

[3] Kahneman is a Nobel laureate in economics for his work in behavioural economics and the author of Thinking, Fast and Slow, published in 2011

[4] Amazon scraps secret AI recruiting tool that showed bias against women

[5] Based on the 2016 Census of Canada and other recent studies, OCASI (the Ontario Council of Agencies Serving Immigrants) reports that “Black students were only 12% of the Toronto District School Board student population but represented 48% of all expulsions. In 2015, the Toronto District School Board (TDSB ) reported that 53% of Black students, compared to 81% of White students, were enrolled in Academic programs of study”. Black Canadians in Toronto are “reported to constitute 8.5% of the population, but 40% of the children in care”.

[6] OCASI reports that in 2016 40% of inmates in segregation at the Toronto South Detention Centre were Black, but they are only 7.5% of the Toronto population. See also information reported by the John Howard Society including that an analysis of 10,000 arrests in Toronto showed that “Blacks were 50% more likely to be taken to a police station for processing after arrest, and 100% more likely to be held overnight than were whites, even taking into account criminal history and age” and that “Blacks are over represented in federal prisons by more than 300% vs their population, while for Aboriginals the over representation is nearly 500%”.

[7] Commentaries 11 and 12 to Rule 6.3.1-1 make clear the Rules of Professional Conduct now prohibit direct and indirect discrimination on prohibited grounds.

[8] Law Society Act, s. 4.2

[9] As Ms. Allen puts in in the podcast “we should try to ascertain what is the picture of human good or human value that motivates this other person even though it results in an action that we think is abominable”.