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Why are law firms still failing on diversity?

Despite the profession’s honest attempt to increase diversity and improve its workplace culture, most law firms have hardly made any progress
Despite the profession’s honest attempt to increase diversity and improve its workplace culture, most law firms have hardly made any progress

Amanda has always felt like an outsider. In her first job out of law school, at a boutique firm in a small city outside of Toronto, she was the only person of colour at the office. When she was called to the bar in the 2010s, her boss, a white senior partner in his 70s, offered his congratulations. Her parents must be proud, he said, because she was the first professional in her family. Amanda was confused. Not only was that untrue, but she’d also never discussed her relatives’ careers with him. She couldn’t help but wonder: had he just assumed they weren’t professionals because of her ethnicity? She dismissed it as a thoughtless comment and tried to put it out of her mind. 

But similar incidents kept occurring. A clerk once told Amanda, who asked that we not use her real name, to close her office door when she was eating “smelly” food. (The clerk was complaining about rice, chicken and soy sauce.) She was also yelled at more often than anyone else in the office. Amanda couldn’t tell if colleagues treated her differently because she was young, female or racialized — or if it was her fault. “I thought maybe I was just really stupid,” she told me, “or that I didn’t understand the law.” 

One day, Amanda was in the office kitchen, washing her lunch dishes. While she stood over the sink, her boss walked up behind her and said, “Maybe you should rethink your career to doing something more like this.” She was appalled, but she had no idea what to say. “I was 25 and brand new,” she recalled. “I was scared of losing my job.” 

Amanda never reported that comment — or anything else — to the office manager because it seemed futile. Her boss, who brought in money and clients and paid the manager’s salary, was untouchable. She, on the other hand, felt like a pariah. “I wanted to quit so many times,” she said. She considered going back to school to get her MBA or jumping ship to the tech sector. “I clearly don’t belong here,” she told herself. 

Amanda’s story stands in stark contrast to the inclusive culture that most law firms claim to have built. Many firms in Ontario have a pro-diversity statement on their website, touting a commitment to fostering an equitable and welcoming workplace. Over the past decade, law firms have struck diversity committees, launched affinity groups, hired consultants and conducted unconscious bias training. On paper, the legal profession should be a multicultural utopia that celebrates people of all genders, ethnicities, sexual orientations, ages and abilities. 

In reality, though, the legal world can be a hostile place. In late 2021, I spoke with about two dozen lawyers, most of them women or people of colour, about their experiences in the profession. Like Amanda, many of them had been, or continue to be, the only racialized lawyers on their teams. Few of them had encountered blatant acts of discrimination, but most of them had stories of insensitive remarks and insidious acts of exclusion. 

The upper reaches of the profession remain strikingly homogenous. Though Toronto is one of the most diverse cities in the world, few of its law firms reflect that. Back in 2013, 10 percent of racialized lawyers in Ontario were partners in private practice, compared to 21 percent of white lawyers. Today, those numbers are virtually unchanged. According to the latest data, eight percent of racialized lawyers are law-firm partners, compared with 17 percent of their white counterparts. 

The lack of women in the partnership ranks is another long-standing problem. Nearly a decade ago, in Ontario, 11 percent of women in law had made partner, while 25 percent of men had achieved that milestone. In today’s legal profession, a mere nine percent of women are partners, compared with 21 percent of men. That’s hardly a sign of improvement. 

All of the evidence points to an alarming conclusion. The pro-diversity initiatives that law firms have invested in over the past decade haven’t accomplished much at all. 

Illustration of a person holding up a blueprint or plan of a house structure built out of blocks in front of a wall of blocks that do not resemble the blueprint

In my conversations with lawyers for this piece, many described subtle acts of racism and sexism. Several of the lawyers had stories of going to court and being misidentified, almost always by older white men, as law clerks, court reporters and assistants. Sudevi Mukherjee-Gothi, a partner at Pallett Valo LLP, told me that firms sometimes ask racialized lawyers to shorten their names for their convenience, a request that can be deeply hurtful. “Your name is a legacy from your family, your ancestry,” she said. “A name is a badge of honour, at least to me.”

One woman told me she’d straightened her hair for a job interview to diminish her Blackness. After landing the job, she let it go curly again, which prompted a partner to comment, “I liked it better the other way.”

In those moments, most people are unsure how to respond. Emily Fan, a partner at Lerners LLP, once attended a work dinner where a senior lawyer from a different firm, unable to recall the name of a man with Asian heritage, called him “Mr. Ching Chang Chong.” “The whole table froze,” Fan told me. She wanted to say something, but she was in shock and didn’t know how to challenge a much more senior lawyer when she was so junior. She also wanted to come across as a competent, hard-working lawyer, not an activist or a troublemaker. “It’s funny,” said Fan. “We’re litigators. We’re so good at fighting for our clients and asking for exactly what we want in that adversarial setting. But when it comes to ourselves, we don’t always stand up for what we deserve.”

How can such incidents still happen, despite all the effort to make law more inclusive? A large part of the answer lies in the fact that, according to the latest research, the diversity initiatives that dominate the corporate world aren’t very effective. 

Consider the example of unconscious bias training. Over the past decade, nearly every lawyer on Bay Street has filed into a packed conference room where a speaker, often an external consultant, helps them identify and overcome deep-seated prejudices they didn’t know they had. The idea is that, following this internal examination, the professionals will be less likely to make hurtful comments and more likely to support equity-seeking groups. Not long ago, this seemed like a revolutionary weapon in the battle against prejudice. Many academics now doubt that it works at all. 

“[H]undreds of studies dating back to the 1930s suggest that antibias training does not reduce bias, alter behaviour or change the workplace,” wrote Alexandra Kalev and Frank Dobbin in the academic journal Anthropology Now. Kalev, a professor at Tel Aviv University and a leading expert on diversity, has identified several flaws that are baked into most unconscious bias training sessions. Most participants, for one thing, quickly forget what they hear. Worse still, some people feel that they’ve been “cured” of their biases, giving them a false sense of progress. 

These sessions can also trigger a backlash. One lawyer who has conducted unconscious bias training told me that she has seen members of the profession, particularly older white men, respond with annoyance: walking out, complaining that others were being too sensitive or getting defensive and asking questions like, “What did I do wrong?” To be sure, those lawyers are to blame for their inappropriate conduct. But if the training is supposed to change hearts and minds, this is hardly an ideal outcome. 

To Kalev, unconscious bias training appeals to employers because of its speed and simplicity. “It’s a quick in and out,” she said. “It’s an easy thing to market and to show a regulator.” But unlearning discriminatory ideas, especially those that reside in our unconscious mind, is a long-term project. Not a one-and-done affair. 

Sonia Kang, a professor at the Rotman School of Management, told me that the least effective diversity initiatives are the ones that focus on changing individuals. Unconscious bias training certainly fits that description. But Kang also pointed to conferences that teach women and racialized lawyers how to “lean in” and take ownership of their careers. Such programs have little to no effect on the structural conditions that give rise to disparity. 

Fortunately, Kang has identified a range of evidence-backed ways to create a more diverse and inclusive workplace. On the whole, she told me, organizations need to pay close attention to the core policies that guide recruitment, promotions, payroll, parental leave and beyond. “If you have a systemic problem,” she said, “you need a systemic solution.” 

Some of her suggestions are deceptively simple. When writing a job post, for instance, evidence shows that using gender-neutral words like “creative” and “dedicated” — as opposed to adjectives that are stereotypically seen as masculine, such as “competitive” and “strong” — can lead to an uptick in female applicants. 

Another strategy can make promotions more equitable. Statistically, white men are most likely to receive perfect marks on performance reviews that use scales from one to 10, an advantage when competing for a better position. (The prevailing explanation for this discrepancy is that Western culture finds it easier to imagine a man as “brilliant” and thus deserving of a perfect 10.) By switching to a scale that goes up to six, businesses could eliminate this inherent bias and promote more women. 

Kang also told me that, when a senior position becomes available, businesses should consider all possible employees for the promotion unless someone asks to be left out of the process. This is called the opt-out model. Research shows that it results in more promotions for women and people of colour. 

The opt-out model can also be applied to parental leave. Even when companies offer identical leave policies to mothers and fathers, men take less time off — if any at all. As a result, women who take a full parental leave are often seen as less committed to the job. The solution, according to Kang, is to require that all new parents take time off unless they opt out of the policy. Evidence shows that this boosts male participation and reduces the negative impact of parental leave on women. 

A law firm’s leaders have the most power to set new norms. Imagine a top male partner taking a 26-week parental leave. “It’s particularly important for high-status groups, or groups that have traditionally held power, to do these things, because then they’re modelling,” said Kang. “If they’re doing it, then it’s okay for everyone to do it.” 

None of these reforms will change a company’s culture in an instant. Kang admitted that fact. But, over time, they can alter the demographic makeup of a firm and its leadership. 

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To their credit, some Bay Street firms have begun to think beyond the basics of diversity and inclusion. There’s been a concerted effort, for instance, to improve student recruitment. Many firms now reach out to racialized student groups in advance of application deadlines and, in job interviews, ask a standard set of questions that test legal competence instead of those that assess whether a candidate fits the firm culture. 

McCarthy Tétrault LLP recently launched a 1L summer program specifically for Black and Indigenous students. Last year, seven students participated in the program; five were Black and two were Indigenous. All but one of them are set to join the firm as 2Ls this upcoming summer. (The student who isn’t returning was offered a position but has moved to New York City.) During the traditional second-year recruitment process, which took place this past fall, McCarthys hired an additional six Black students and one more Indigenous student to join the firm in the summer. 

Getting a diverse group of lawyers in the door is one thing. Keeping them is another. Several firms told me about programs they’d recently launched to help lawyers move up the partnership track. Examples include sponsorship programs to help equity-seeking lawyers get more opportunities and work-allocation strategies to ensure partners assign files equitably. I heard, anecdotally, that partners have started to change their assigning habits based on these programs, not realizing how homogenous their teams were until the data was presented to them. Such developments have the potential to buoy a larger number of women and racialized lawyers into the upper echelons of Big Law. 

At Borden Ladner Gervais LLP, Laleh Moshiri, the firm’s national director of diversity and inclusion, developed a transgender-inclusion policy before the firm had an openly trans employee. She changed signage around the office to be gender-neutral, encouraged staff to disclose their pronouns and drafted guidelines for how the firm would support a firm member through a transition. Shortly thereafter, a BLG firm member publicly came out as trans, crediting the policy for making him feel comfortable enough to transition at work. “It’s very easy to put up rainbow flags during Pride,” said Moshiri. “But you need to do the real, behind-the-scenes work to create an inclusive environment.” 

Meanwhile, at McCarthys, all partners, lawyers and staff are expected to contribute to diversity and inclusion by, for instance, mentoring diverse lawyers, developing new policies or planning educational events. At the end of the year, lawyers have to list these contributions when they apply for bonuses. As Atrisha Lewis, a partner at the firm, put it to me: “If you don’t have anything to put in that bucket, that has a serious impact for you.” 

Data collection has also improved. Many firms now conduct surveys that ask lawyers whether they can be their authentic selves at work and what they think about the firm’s existing diversity initiatives. When I spoke to Kristin Taylor, the managing partner at Cassels Brock & Blackwell LLP, she was happy with the high level of participation in one such survey, which indicated to her that employees trusted the firm. And while the firm’s partners have historically skewed white and male, she said the firm is working hard to change that fact. “We’re not keeping up with the Canadian population,” she said, adding that the onus is on firm leadership to lead the change. “Partners in particular have an obligation to create [a diverse and inclusive] firm, and they should be held accountable for that.” 

The most successful diversity and inclusion programs have one thing in common: buy-in from the top. When senior partners are committed to building a better workplace, they invest the necessary resources and empower their team to do the work. Goldblatt Partners LLP provides an illustrative example. In the mid-2010s, the labour law firm’s founder, Howard Goldblatt, served as vice-chair of a Law Society of Ontario working group dedicated to addressing challenges faced by racialized licensees. The group’s 2016 report proposed 13 strategies to foster diversity, including creating robust human rights policies. 

By that time, Goldblatt Partners, which has long prided itself on being progressive and social-justice-oriented, had achieved gender parity in the partnership. But it had no racialized partners. And, in the associate ranks, there was just one Indigenous lawyer and two people of colour. The firm wanted to do better. 

Initially, Goldblatt Partners took the typical steps, such as holding unconscious bias training and launching a diversity committee. But Emma Phillips, a partner and co-chair of that committee, told me that only got them so far. “It’s pretty easy for lawyers to get to the point where they understand, at a conceptual level, what these concepts mean,” she said. “It’s a lot harder for all of us to get to the point where we’re actually changing our conduct.” 

Goldblatt Partners soon hired a diversity consultant, who helped the firm identify three priority areas. First, the firm struck a committee to look at how to collect demographic data that could serve as a baseline to measure progress in the future. Second, it started re-examining its mentorship program through a diversity lens. And third, the firm has been hard at work on a micro-aggression protocol: a guideline to help members of the firm report and respond to subtle acts of exclusion. 

In May 2021, the firm invited its articling students to provide feedback on the protocol. “This is a protocol that’s meant to alleviate some of what students and young associates have been going through,” said Simran Prihar, a Goldblatt partner and co-chair of the diversity committee. “Trying to address that without their input seemed to make no sense.” 

The firm also encourages lawyers to docket the time they devote to diversity and inclusion, just as they do with other non-billable activities (such as mentoring an associate). “The fight for race-based inclusion is most often going to fall on the shoulders of those who are racialized,” said Kiran Kang, an associate at the firm (and the sister of professor Sonia Kang). “Which comes with a heavy burden.” To Kang, it’s particularly important that the firm is willing to recognize lawyers who take on this work. 

Over the past six years, the firm’s work on diversity has yielded noticeable results. Now, 13 of the 65 lawyers at the firm are racialized or Indigenous. Three of those lawyers are partners. “We’ve made dramatic and important efforts,” said Goldblatt. “But we also know that there’s still lots of work to be done.” 

Ultimately, Amanda decided to stay in law. These days, she works as an associate at a small office in downtown Toronto, where she is one of the only lawyers of colour. Her firm doesn’t have an inclusion officer or a diversity committee, and she doesn’t feel empowered to create one. “It would be me and one other person,” she told me. “And what would we say? ‘You guys need to treat us better’?” 

Amanda doesn’t think of herself as a radical. “I’m perfectly fine with the old white guys continuing to run the firm,” she said. “They have excellent strategy ideas and bring in wealthy clients.” At the same time, she knows that the pro-diversity messaging that’s rampant in the legal profession does not match reality. “The only thing I want changed is the treatment of underlings. I just don’t want to be treated like a second-class citizen when I’m here working really hard for you.” 

This story is from our Spring 2022 Issue.

Illustrations by Hanna Barczyk.