Lawyers are professional problem solvers; we apply ourselves wholeheartedly to solving problems for our clients, no matter how complex or stressful. Yet, while meeting the demands of our profession, it can be easy to push aside the problems we are facing ourselves. This tendency to focus on the needs of others, coupled with the desire to project an image of being in complete control, can create an environment in which instances of harassment and discrimination go unreported – which only gives traction to the very real and pernicious issues of harassment and discrimination in the legal profession.
As such, it is critical to ensure members of the profession are supported should they find themselves facing situations of workplace harassment or discrimination. This is where the Discrimination and Harassment Counsel Program (DHC) comes in. The program is a key tool that all lawyers should be aware of when combatting discriminatory workplaces. Currently staffed by three counsel, the DHC operates a confidential phone line and support service for both licensees and individual clients with complaints of discrimination and harassment against members of the profession. Though the Law Society of Ontario (LSO) funds the program, the DHC works independently, and all information received by the DHC is held in strict confidence regardless of whether its source is the complainant, the respondent, or others seeking information about the program.
To understand more about the DHC’s work, I spoke directly to Fay Faraday. Faraday is one of the DHC’s three counsel, who brings extensive experience as a leading human rights advocate to the program. Faraday says that discrimination and harassment infiltrate “every imaginable sphere of practice – no area of legal practice is immune in the way that no area of society is immune from discrimination.” Faraday further tells us that partners, students, associates, and clients are all affected. However, many are fearful of speaking out due to large power imbalances and a “culture of perfectionism” in law that leaves people doubting their own lived realities, fearing reprisal, and lacking very many supports to talk candidly to about what they are experiencing.
This year marks the 20th anniversary of the DHC’s establishment – which is an opportunity for us to reflect on how far we still have to go as the profession grapples with these issues. We can learn a lot just from what the DHC has been tracking and providing to the LSO over the last few years. Initially, the DHC office was created to respond to growing concerns of sexual harassment of women in the profession. Today, while sexual harassment unfortunately remains a concern, the breadth and depth of the issues that the DHC deals with have evolved.
This is certainly reflected in the findings of the Challenges Faced by Racialized Licensees Working Group in 2017, or information released in the LSO’s Equity Committee Report in the Fall on the workings of the DHC. Per the latter report, in the first half of 2018 there was a 50 per cent increase in new complaints from individuals about discrimination and harassment in the profession, including licensees and members of the profession. For licensee complainants, racial discrimination and sexual harassment remained the most persistent issues. The majority of the licensee complainants were women, with a large number of these women voluntarily self-reporting as racialized.
Faraday’s insight confirms what the reports say. She advises that while sex-based discrimination and sexual harassment are still a large proportion of the cases that the DHC encounters, intersectional experiences of discrimination and harassment have now come to the fore. According to Faraday, the majority of complaints that come forward to the DHC are from people in the legal profession and clients who face intersecting forms of discrimination. This is apparently particularly true for male-identifying complainants, who, we are advised, almost exclusively seem to face multiple intersecting forms of discrimination, including race, religious, sexual orientation, and disability-based discrimination. Faraday further reveals that the DHC has also increasingly received calls from Indigenous lawyers, students and clients.
The DHC strives to provide victims of discrimination and harassment with options. A complaint to the DHC will not result in a formal legal process. No witnesses are served, and there are no hearings on motions or filing deadlines. Instead, the DHC primarily exists to support those who contact the program by talking them through their issues and highlighting possible routes to resolve their disputes. The DHC’s services are provided cost-free and confidentially to users, and can be accessed anonymously if desired.
“The first question I ask,” Faraday says, “is: what is your ideal outcome in this situation? And every person has a different answer – it is not just about providing people with stock answers but providing them with options to achieve the outcome they want.” In appropriate cases, the ideal outcome may be for the DHC to mediate informal resolutions or provide conciliatory services as a neutral third-party facilitator. If parties are willing, this voluntary resolution-focused process can be an effective tool for those involved.
Faraday points out another grim but important reality, along the same lines of what I have previously written about for the OBA in 2017: that discrimination and harassment is rife against students. “The DHC is increasingly hearing from articling students, particularly those who have completed their legal education outside of Canada,” according to Faraday. The abuse is often economic, with some students not being paid their salaries for extended periods, while simultaneously working extremely long hours. Once again, Faraday reports that a significant proportion of those students who contact the DHC about an abusive work experience are racialized.
In addition to encouraging students to contact the DHC should they find themselves in an abusive workplace, Faraday wants to remind articling principals of their commitment to their students and the profession at large. “Access to an articling student is not a right, it’s a privilege. Any lawyer serving as an articling principal has committed to train and ensure proper mentoring and skills development for the student they hire. It is not an opportunity for cheap labour. [Treating articles as cheap labour] is a disgraceful introduction for any student into the profession, and an abuse of this privilege.”
Proactive steps in tackling discrimination and harassment are also much needed in the profession, and the DHC is a useful contact for any organizations looking to inform their members of strategies to prevent workplace harassment and discrimination.
For anyone who fears the consequences of reaching out to the DHC, be it a licensee or an individual client, Faraday emphasizes the complete confidentiality and anonymity of the process.
Indeed, anyone who may be feeling alone in such a situation should know that discrimination and harassment are never ok. Dealing with such a situation is perhaps one of the most difficult circumstances anyone can find themselves in, but there is comfort in knowing that there are more supports and options out there than one may realize. And, more than that, we as lawyers have to do better in creating a supportive environment for victims of discrimination and harassment in the legal community. We owe it to ourselves, to our clients, and to the profession.
To learn more or contact the Discrimination and Harassment Counsel, visit their website at www.dhcounsel.on.ca, email them at email@example.com or call them confidentially at 1-877-790-2200. You can keep up to date with their work through the DHC’s Twitter account, @DH_Counsel.
About the author
Richa Sandill is staff employment lawyer at Scarborough Community Legal Services, as well as chair of the OBA Women Lawyers Forum and member of the Equality Committee.