From “a History of Exclusion” to “Diversity, Equity, and Inclusion”: What May Have Gone Wrong in the Pursuit of the New Notion of Professionalism
Today, Diversity, Equity, and Inclusion (“DEI”) practices have become indispensable in almost every legal workplace. DEI practices aim to promote a new notion of professionalism, one where individuals from all walks of life enjoy fair treatment and full participation. “Merry Christmas” has become “Happy Holidays”. Profiles of Black and Asian-looking lawyers surge during Black History Month and Asian Heritage Month. Rainbows are slapped onto logos before the pride parades. Land recognitions are performed before major events.
However, do these actions mean this new notion of professionalism is working well?
Where It Starts: DEI as a Departure from a “History of Exclusion”
The masculine, white, upper-class, protestant notion of professionalism has long monopolized our legal profession. This notion excludes individuals who do not fit in the homogenous pool of law students and lawyers. As Professor Constance Backhouse noted, even some Supreme Court of Canada justices – individuals at the pinnacle of the judiciary – have endured uncivil treatment because of their gender. One could start to imagine the obstacles before students, lawyers, and other judges who are non-cis-male, non-white, less well off, and non-Christian. Many have faced barriers in pursuing legal education and career, and have encountered disproportionate criticisms and challenges.
DEI is a welcomed departure from that history of exclusion. However, as our profession recognizes the need and tries to move from exclusion to inclusion, new issues arise. Certain DEI practices have generated new forms of harm for individuals from communities that already suffer historical exclusion.
Unfortunately, attention to these new forms of harm is limited, and discussions are lacking. Power imbalances and fear of repercussions have deterred affected individuals from being candid. In this context, I want to share some anecdotes as a law student with visible traits connecting me to marginalized communities, hoping to call attention to emerging issues and provide food for thought as we seek true and meaningful inclusion in our profession.
How It Is Going:
DEI as Performance
I once interviewed with a major legal employer known to be a champion for employment equity. However, in every round of my interview, a question was raised about my identity, specifically my Canadian connection. I would protest the question and escalate the issue to the human resources department, only to be asked the same question in the next interview. At the end of the in-firm interview stage, it became clear that this employer had not refrained the interviewers from asking identifying questions, an action their own employment equity policy criticizes.
When employers talk the talk but do not walk the walk, their performative DEI practices cause harm. For employees, many of us may have chosen these employers because we believe in their DEI policies, only to get hurt by reality. For employers, performative DEI practices create the illusion, and thereby the complacency, that the employers are doing well in addressing the historical exclusion. How can we achieve true inclusion with such illusion and complacency?
DEI as Tokenization
During recruitment, friends and I decided to openly self-identify with our respective marginalized communities. But, then, we heard comments like “you can be our Black/Asian/LGBTQ2S+ student (on our poster/website/team).”
Hiring an individual to “check the box” for diversity betrays the intent of DEI. Such practices reduce us to our race, ethnicity, and sexual orientation, while diminishing us, our hard work, and our achievements. These comments shake our confidence. Even though we ended up receiving job offers, the self-doubt never ceases. Do we really belong in this workplace and this profession? Or were we hired only because the employers need us as proof of diversity?
DEI as Mis-conceptualization
A hiring manager at a well-known organization commented that they were “supportive of DEI, but it would be nice if [they] were not hiring the fifth best candidate.” On social media, a law student complained that a job they applied for was given to another candidate due to “affirmative action”.
These comments demonstrate a common mis-conceptualization that individuals historically excluded from our legal profession should indeed be excluded, but DEI forces their way in. If left unaddressed, such mis-conceptualization will likely aggravate the biases. How can those historically excluded be genuinely welcomed into our profession when they are still seen as lesser?
What Is Next: DEI as Means and End
Pursued as a new notion of professionalism, DEI should not only be done, but also done properly. However, some of us may have confused the means and the end. Saying the word “DEI” does not magically teleport us from a history of exclusion to a golden era of inclusion. Meaningful DEI practices require our sensitivity to the historical exclusions, systematic biases, and continuous harm that necessitate DEI. True inclusion invites us to interrogate our stereotypical assumptions, recognize individuals for truly who we are, and advocate for a better understanding of DEI. These actions are arguably more important than sending the politically-correct-sounding greetings, showing faces of visible minorities, painting logos with colours, or adding rituals to event programmes. Pursuing DEI superficially, without understanding why the pursuit started in the first place, could cause more harm and division, and potentially introduce us to a different kind of exclusion.
Emma Huang is a JD Candidate at the University of Ottawa, Faculty of Law. She summered at Torys LLP and will return for her articles in 2023-2024. She has experience in providing legal and policy support for the federal government on issues including stakeholder relations, digital compliance, and regulatory technology. Previously, she held client management and business development roles at an international legal service start-up company and a healthcare quality assurance organization.
Emma holds a M.A. in Political Economy and a Master Certificate in Business Analysis from Carleton University. She also holds a B.A. (Honours) in Political Science from Memorial University of Newfoundland, where she graduated with the Senator Joan Cook Convocation Award for the highest standing in Canadian politics.
 Constance Backhouse, “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives” in Adam Dodek & Alice Woolley, eds, In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (Vancouver: UBC Press, 2016) 126 at 134-137.