Counting out loud

Examining the issues surrounding the lack of gender demographic data made available by Canadian law firms
Examining the issues surrounding the lack of gender demographic data made available by Canadian law firms

 At the end of September, some 100 young female associates filed into Norton Rose OR LLP’s Toronto offices for a sold-out Young Women in Law panel titled, “Navigate Your Way Through Private Practice.” Chatter filled the room as new associates, in a sea of grey suits and black pumps, traded notes on their first few weeks on the job, and second- and third-years caught up with colleagues.

“Resilience” was the word of the day. Tips included how to manage outside relationships so they don’t interfere with work, and juggling emotional pulls like children and aging parents. What panelists could have been saying is: “Look to your left. Now look to your right. At least one of these women won’t be here in 10 years.”
When the hour-long panel finished, the floor opened for questions, but there were none, only a depressing silence.

It’s well known that Bay Street firms have trouble keeping women in their offices. Estimates are that women leave private practice at twice the rate of men. That’s one reason the Law Society of Upper Canada launched the Justicia Project, an initiative to help firms stop the hemorrhaging of women from private practice, which wrapped its initial three-year run this fall.

It’s been at least a decade since women began outnumbering men as law school graduates. In theory, then, today there should be nearly as many women as there are men making partner at firms. So are they? Well, we just don’t know.

The problem is, despite growing demand from clients and recruits for employee demographics, Canadian law firms aren’t required to disclose them, and many opt not to. Some firms don’t track demographics at all. And in the absence of comprehensive, reliable gender-demographic reporting, it’s impossible to track progress.

Anecdotally, at least, women are behind. Andrea Lee, who made partner at boutique Toronto construction law firm Glaholt LLP last year after just four years as an associate, says a few of her peers haven’t had such positive experiences with their careers. “A few of my girlfriends who are with big corporate firms are just not as happy with law as they thought they might be,” she says. “So they’re either looking at changing practice areas, going in-house or they’re just switching out of law altogether.”

Kathryn Bird, a fourth-year associate at Hicks Morley Hamilton Stewart Storie LLP in Toronto, reports that overall 30 percent of Hicks Morley’s 60 partners are women. Among the 28 partners in their first 10 years, 16 are men and 12 are women — a healthy 43 percent. Bird thinks her family-friendly firm is ahead of the game, but says the profession as a whole still has a ways to go. “It’s a sad commentary on the state of private practice in 2011 that the Law Society has to strike a task force about gender equality in private practice to discuss these issues.”

LITIGATOR JOY CASEY, who left Blake, Cassels & Graydon LLP in 1993 to start her own commercial and employment litigation practice, wants less talk and more action. In 2009, she launched A Call to Action Canada, an initiative that encourages major Canadian companies to direct legal work to outside firms that are “controlled by, or have a substantial number of, partners who are women or minorities.”

A Call to Action Canada also urges businesses to limit or terminate relationships with firms that show little interest in being diverse. “We need that kind of economic pressure to make a difference,” Casey says. “We also ask them to look for enhanced opportunities to send work to firms that show real progress on diversity. The intent is to reward firms that show that they are serious.”

How do firms show it? Metrics. To demonstrate a commitment to the advancement of women, Casey thinks all Canadian firms should make internal demographic data public and let clients and potential recruits judge for themselves. “Most big firms are putting a lot of time and money into diversity programs. You’d think they’d like to know if they’re working,” Casey says. “And how do you know that if you can’t measure it?”

IT’S A DIFFERENT SITUATION in the U.S., where federal law requires that every employer with more than 100 employees report workforce data to the U.S. Equal Employment Opportunity Commission, including a gender headcount. “American organizations are used to reporting these numbers everywhere, all the time,” explains James Leipold, executive director of the National Association for Law Placement, an organization that provides a searchable database for legal professionals on which firms pay to be listed.

Search the American NALP directory and not only will you find basic firm information, but also an accurate breakdown of male and female associates, equity and non-equity partners, and ethnicity and race demographics at the firm.

Then there’s, a privately owned career management site with rankings for the legal, accounting, banking and consultancy industries. It regularly ranks law firms by all sorts of measures, including the “25 Best Law Firms for Diversity: Diversity for Women.” The list is based on qualitative demographic information collected from hundreds of law firms. And where the rankings fall short, the online legal community acts as a check. For example, the 2012 survey ranked Boston-based Ropes & Gray LLP number three in gender diversity. But one respondent notes that while “Ropes is a friendlier place for women than lots of other firms, among senior associates and partners, there are still embarrassingly few women.”

So just because U.S. law firms make their demographic information available for public review doesn’t necessarily mean things are much better south of the border. But making the basic statistics public is a necessary starting point in pushing for change. “Everyone you talk to says what gets measured, gets done,” says Casey.

NOTHING LIKE VAULT exists in Canada. The closest thing here is the online Canadian Directory of Legal Employers. Run by NALP’s Canadian counterpart, the site is modelled after the U.S. directory. Currently there are 192 law offices and legal organizations listed in the Canadian NALP directory — a fraction of the total number of firms nationwide.

Like the U.S. site, Canadian firms self-report data, but here they aren’t forced to disclose gender numbers or indicate the number of female and male employees who are equity partners, non-equity partners and associates. “Gender information is readily available in the States because they’re required by law to collect it,” says Kara Sutherland, director of professional resources at Fraser Milner Casgrain LLP and a member of the team that launched NALP Canada. “Whereas here, everyone can choose what they want to collect and reveal what they want to reveal.”

Many firms in the NALP Canada directory choose to reveal a fair amount, listing demographic details and information about in-house diversity initiatives. (FMC reports on NALP a total of 71 equity partners in the Toronto office, a split of 56 men and 15 women.) But roughly a quarter of the firms on NALP elect not to share gender stats, including big names such as Torys LLP, McMillan LLP and Aird & Berlis LLP. Some may indicate total number of men and women, but don’t specify how many are equity partners and non-equity partners — one of the real indicators of a firm’s commitment to advancing women.

Keeping this information private might be hurting firms more than they know. “Most students and associates want this kind of information. If you don’t provide it, then people will make assumptions about the culture of your firm,” says Sutherland.

HELPING LAW FIRMS do a better job of tracking gender demographics is a key focus of the Justicia Project, launched in 2008 by the Law Society of Upper Canada as part of its Retention of Women in Private Practice initiative. According to a June 2011 Justicia report, most of the 56 participating firms are collecting and maintaining gender data. The trouble is, there is no requirement for that information to be made public and in many cases it isn’t done — of the 56 Justicia participants, only 34 firms have listings on the NALP directory.

 May Cheng thinks they can do better. “That falls short of what my expectation was with respect to the gathering of the data,” says Cheng, a partner at Fasken Martineau Dumoulin LLP and a member of Justicia’s Women’s Equality Advisory Group, which is charged with monitoring follow-through on Retention of Women in Private Practice project initiatives. “Surely if you’re asking firms to gather and collect the data, it shouldn’t be just for their internal purposes, but also reported externally so there could be some external accountability for the numbers.”

But LSUC treasurer Laurie Pawlitza stresses that the Law Society can’t force firms to disclose gender data. “Our legislation only permits us to regulate individual lawyers, not law firms as a whole. So our hands are tied in terms of requiring law firms as entities to do certain things.”

The reality is that LSUC collects a lot of information on individual lawyers. Every lawyer in Ontario is required to report their status on an annual basis — specifying such things as whether they are a partner or an associate and whether they are working in private practice, government or in-house. They also indicate their gender. With all this reported information, the Law Society already knows law firm demographics, even without having the firms themselves disclose. Making this information public would paint a very telling picture of the realities of the profession.

The Law Society just extended Justicia for two more years — without any major changes to the program. Pawlitza thinks gender reporting will come “in relatively short order,” just not from the LSUC. “Canadian branches of American firms, and a number of Canadian organizations that are large clients of law firms, are making it quite clear this is information they want to have and expect from their service providers,” says Pawlitza. “So I think the pressure is going to come from the markets they serve.”

But for the young women who came to the YWL panel looking for advice on how to navigate their way through private practice, the question is, will the change come quickly enough?

Kathryn Bird is determined to be in private practice in ten years, but she knows that won’t be the case for all of her female colleagues. “I don’t imagine that by the time I become a partner 90 percent of the downtown firms will have 50 percent junior partners being women. I just don’t see that happening.”

Not so black and white
Ethnic diversity tracking at Ontario law firms lags behind the U.S.

In addition to tracking the gender breakdown of associates and partners at law firms, American company, in partnership with the Minority Corporate Counsel Association, also compiles the Law Firm Diversity Database, which offers searchable information on the ethnic diversity performance of U.S. law firms.

The database can be used to compare firms’ diversity metrics, track a firm’s progress over time, and evaluate its performance against industry-wide benchmarks.

For example, the demographic profile for Akerman Senterfitt, a Miami-based firm, shows that in 2010 there were 215 equity partners at the firm. Of these partners, 195 were White/Caucasian, 12 were Hispanic/ Latino and 5 were African American/Black. The U.S. NALP directory also includes a section where firms list their ethnic and race statistics.

Most Canadian law firms do not publish race and ethnicity demographics, and NALP Canada has no section to report such information. In 2010, LSUC published a report titled, “Racialization and Gender of Lawyers in Ontario.” It showed detailed province-wide statistics on Ontario lawyers’ ethnicities, but no firm-specific information was given.

Jason Leung, a director with Ridout & Maybee LLP and past president of the Federation of Asian Canadian Lawyers, says, “Having these stats available to our group or other ethnic bar associations would help us lobby for things like more visible minority partners or more visible minorities on judiciaries.

“It would help us identify problem areas much more easily and we could specifically bring to our attention areas where there is a lower percentage (of minorities) than we think there should be.”

Leung hopes the benchers of the Law Society will play a role in encouraging these types of statistics to be made more public.

Illustrations: Katy Lemay