After a week in which the Law Society of Ontario moved to repeal a requirement that lawyers and paralegals make an annual private pledge to promote equality, diversity and inclusion (“EDI”), the Bar must now reflect on the root cause of this public policy failure: Asking a privileged group to give up its perch, or even thinking about giving it up in the comfort and privacy of their law offices, is to ask a noble act beyond our ability.
Three decades ago, about the time when I was starting in legal practice, American lawyer Daniel Lugo wrote this about the plight of African-American lawyers:
After over three hundred years of negative action toward African Americans, compensatory justice or some form of affirmative assistance is required by society to improve itself. As a result of employment discrimination, African Americans have found themselves forming a working-poor subgroup out of which most members are either employed in lower paying blue collar positions or unemployed. Without such affirmative efforts, we cannot seriously profess to believe in the principles of equality nor, on a more practical level, can we expect to compete in the global marketplace.
I have had many discussions with African-American lawyers and judges, including my interaction with young lawyers when I was invited to address them at the American Bar Association’s annual meeting in 2011. What struck me is that affirmative action measures in the United States legal establishment have indeed made a difference. Indeed, the elevation of Black and Hispanic lawyers to the highest levels of the Bar and public life are proof of a social phenomenon that has simply not occurred in Canada, among our minority and racialized groups. Canadians like to think our country as more advanced than 1/10th of America. On this file, though, we drag far behind 1/10th of America’s achievements.
One of the reasons why Canadian law appears to be lagging behind in promoting EDI principles is the fractured pipeline to a legal education. We do not provide young minority students with the encouragement, or the tools, or the networks to seek a profession in law. Moreover, we also fail to recognize that legal education does not end with law school. Every working day as a lawyer is a learning experience. Lawyers from disadvantaged communities are often the subject of belittlement or discouragement, when in fact all such lawyers (myself included) need to be educated on legal norms established by the experience that the majority and entitled communities take for granted. When they answer surveys reporting discrimination, they now face the reaction that such data was “rigged.” (Law Times, Sept. 11) In other words, the profession embraces EDI but will resist any attempts to implement its principles.
Minority lawyers may take longer to achieve standard academic and professional goals, but this is not a reason to exclude them. Rather, it may be an indicator that they can (as they often do) work harder to achieve such goals and thus ultimately emulate others in their cohort. Unless we study and understand this phenomenon, we will as a society and as a Bar fail to promote valuable contributors to our much-vaunted just society. If #EDI is private or passive in nature and doomed to be ineffectual, we must now seriously consider affirmative action as the real and only measure to improve ourselves as a profession.