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The future of diversity in the legal profession

By Michael Bach

The way Canada “looks” has changed. According to Statistics Canada, women make up just shy of 50 per cent of the available workforce; 25 per cent of Canadians identify as racialized (people who are not Caucasian in their ethnocultural heritage) and that number skyrockets to over 50 per cent in cities like Toronto and Vancouver; one in five Canadians

live with a disability; and Indigenous people are the fastest growing population in the country, now making up about 6 per cent of the population. That’s just the tip of the iceberg of who Canadians are. In fact, the percentage of people who are straight, white, able-bodied, Christian, Canadian-born men is less than 30 per cent. So, what does the legal sector look like?

According to the 2016 Diversity by the Numbers: The Legal Profession report, the legal profession in Canada looks relatively similar with one distinct variance: women make up 38.56 per cent of respondents; 13.9 per cent identify as racialized; 6.53 per cent identify as living with a disability; but only 1.07 per cent identify as Indigenous.

When we break it down by level however, some things look a lot different:

What the data tells us is that men are twice as likely as women to be in positions of senior leadership. The same holds true when comparing white respondents to racialized people. The discrepancy only gets worse when race and gender intersect – Caucasian men are more than seven times more likely to occupy senior roles compared to racialized women.

If the majority of associates and students are women and/or racialized, why do we see such a significant difference at the top of the house? They enter the profession, but where do they go? We only have to look at the ranks of in-house counsel offices and smaller firms to find the answer. Of course, that doesn’t account for the sheer numbers that simply leave the profession because they do not have (or perceive they have) the opportunity to rise to the top.

Why does it look like this?

There is a litany of reasons as to why things are the way they are. Some are fact; some are assumption; some are pure fiction. One thing we know for sure is unconscious bias and systemic barriers play a significant role in keeping these groups from progressing. Men are perceived as being competent from the beginning, while women and other underrepresented groups are forced to prove their abilities repeatedly.

How many times have you been in promotion conversations and when speaking about a man, you talk about his skills and abilities, and when talking about a woman, suddenly you need to take her family situation into consideration? Bias in the workplace that goes unchecked results in senior partners hiring and promoting people like themselves, rather than basing promotion on ability and performance.

Ensuring that performance assessments, promotions and work assignments are based on merit is the first step to addressing the issue in the legal profession. It is important that everyone undertakes this work – not just those from minority groups. Addressing unconscious bias cannot be an exercise in “preaching to the choir.”

Why should you care?

There are several reasons why looking at diversity in the legal profession is important, but there are a few key motivators:

Clients care. Clients and potential clients are putting increased importance on diversity and inclusion, and are frequently seeking out firms that demonstrate active engagement in the area. How many RFPs has your firm responded to that ask about your commitment to diversity and inclusion? And how many times do you think you can respond with a lame excuse about “hiring the best and brightest,” as if the best and brightest are apparently all white men?

Talent cares. New lawyers are often drawn to firms that have a demonstrated commitment to diversity and inclusion. Generational change has resulted in conscious awareness that a commitment to diversity and inclusion is usually indicative of a workplace culture that will be welcoming, even by those who have not historically been marginalized or affected by a lack of diversity. This plays out in firms that top talent apply to and by not recognizing this, your firm may be missing out on recruiting the true best and brightest talent available.

The talent looks different. The numbers don’t lie. The only thing a firm can do is hire from the available talent pool of students and associates. But if your new hires are all white men, statistically you aren’t hiring the best and brightest. You’re hiring the best and brightest of either 1) the people that apply (and you may be missing out on top talent who don’t perceive your firm to be inclusive); or 2) the people you feel will “fit” at your firm (and “fit” is usually code for something).

The client looks different. Remember all those associates who left your firm that went to in-house counsel jobs? They’re bound to be influenced by their own experiences. That can work to your advantage or disadvantage, depending on your commitment to diversity and inclusion.

You can reduce your bottom-line and increase your top-line. Studies have shown that the cost to replace an associate can be as much as $300,000. Why would you bother investing in your people, only to create a culture where they can’t succeed? If a person leaves your firm because they don’t feel included, that’s money walking out the door. And imagine losing out on a bid because you assigned a homogeneous team to a client, when they’re expecting your team to be reflective of Canada.

And, of course, it’s the right thing to do. However, focusing on diversity and inclusion because it’s the right thing to do is a mistake. That kind of motivation doesn’t get people out of bed.

The reason to focus on diversity and inclusion is because it’s the right thing to do for your business. This isn’t a war on white men. Diversity and inclusion is about making smart business decisions. If you don’t adapt to the change that is already here, your firm will cease to exist.

Knowing all that, what are you going to do to make your firm more diverse and inclusive?

Michael Bach is the founder and CEO of the Canadian Centre for Diversity and Inclusion.

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