Joanne St. Lewis

Measuring Diversity: A report card for the legal profession

  • February 16, 2016
  • Juliet Knapton

On her Twitter profile, Joanne St. Lewis describes herself as a "Black feminist law prof & artist who loves sci fi."

She is a professor in the Common Law Section of the University of Ottawa, the first and only elected Black woman Bencher of the Law Society of Upper Canada (during which time she has served as chair of its Equity and Aboriginal Issues Committee and of the Human Rights Monitoring Group), a lecturer in the University of Southern California CREATE Homeland Security Center of Excellence, an advisor to Canadian Lawyers for International Human Rights and to the Center Research-Action Race Relations and past chair of the Canadian Bar Association Working Group on Racial Equality.

Simply put, St. Lewis has devoted much of her career to advancing diversity, equality and equity.

Juliet Knapton, past chair of the Ontario Bar Association’s Equality Committee, sat down with her to discuss an idea St. Lewis brought forward during her campaign for Bencher: an annual report card to measure diversity in the legal profession.

How would you evaluate or measure inclusiveness in the profession?

I think there are a number of different ways to measure inclusiveness in the profession: at one level, it is going to be demographic, but at another level it is going to be about shifts in cultures.

We need to have consistent snapshots of exactly who we are as a profession. I think that there is an opportunity with the [LSUC] members’ Annual Reports as a timing opportunity to get a sense of who we are across a number of equality axes.

What needs to be measured?

Moving beyond gender, for example, being able to disaggregate what we mean by disability. I don’t think it is useful to just say "disability", there is a range of disabilities and I am particularly thinking of the distinctions and vulnerabilities of "yes-we-have-physical-access-to-a-building-issues", but, for example, things like a very oral presumption in our profession for deaf lawyers or the way in which we use materials for people who have sight impairments. It would be very interesting to be able to understand how compounded inequalities within diversity groups are actually affecting peoples’ abilities to realize their own career goals or even hampering their abilities to be hired and retained by firms.

Similarly, I don’t think that all racialized lawyers are the same. Certain communities face certain challenges, for example, I would say in a post-911 world, being a person who declares yourself to be Muslim and is a person of faith and practising. I think that we make an assumption that everybody who is racialized is automatically visibly so, but for a number of communities including people coming from the Middle East, certainly for some parts of the black community or for aboriginal communities, it is not going to be patently obvious to anybody in a firm that they are there.

"People have dignity of choice in terms of how they reveal who they are. I am not comfortable, at this point, about it being disaggregated at the firm level because the firms are not diverse enough to provide sufficient privacy and anonymity."

Where do firms fit in?

I don’t necessarily think that firms are entitled to know. People have dignity of choice in terms of how they reveal who they are. I am not comfortable, at this point, about it being disaggregated at the firm level because the firms are not diverse enough to provide sufficient privacy and anonymity.

Where does the LSUC fit in?

As a regulator, the Law Society should have a clear sense of who’s in the profession, have an idea of where they are and have an idea of their areas of practice. That will also give us some insight in two directions: 1) are there areas in which there is a need for and an opportunity for greater diversity where people can contribute because it would strike us that their experiential expertise coming from an existing equality group might actually better serve clients or contribute to the service of clients in those communities, and 2) whether we actually have a subtle form of stereotyping or other factors that are steering people away [from specific areas of practice]. Not all racialized people or persons with disabilities or women necessarily want to be doing social justice related work or being or working with those client bases. So, is there a problem happening in the corporate sector that people are having difficulty visualizing certain persons as being their key point person on real estate, for example?

I say all of that because I think the starting point is data, so that is why the demographic data [is important]. I don’t think the demographic data automatically will give an answer to all the things I just mentioned, but I think it is almost impossible to address the things I just mentioned without having a clear understanding of where people are.

What regulation would be involved?

One of the pieces is that the Law Society has to be able to regulate firms because issues of data and systemic inequality are actually things that take place at an aggregate level. Being able to regulate individual lawyers and to get individual lawyers to speak is going to be quite limited if you don’t have an ability to say, "If you are an aggregate of 10 lawyers, we expect you to demonstrate some measure of diversity or at least explain to you why you look the way you do."

Certainly once you get to be an aggregate of 25 lawyers, I become much more [insistent] and if you are a firm of a hundred lawyers, no you are not a freedom of contract free association! You have obligations at that level very much like any other entity within our society that is subject to employment equity principles. There should be no reason why you don’t have gender parity. There should be no reason why you lack diversity at the senior levels.

What happens at the senior levels?

It is not simply going to be who is there; it is going to be, where are they? Have you retained them? My view, and I think it is supported by the data, is if and when people [invest in] diversity, it is largely pooling at the bottom of the power structure of any institution. That it is actually when you have people at the senior levels, they are still faced with very unusual levels of strategic engagement with their firm because they are often isolated: there is not a critical mass.

We need to know where people are, we need to know how firms are doing their retention, and so once you do that whole area of proper demographics you then need to be able to tackle legal culture, because the demographics are a physical manifestation of the effectiveness of the transformation of equality principles in any organization.

How do we ensure that diverse voices are heard?

I am a fan of exit interviews, for example. The kinds of things a person would never say when they are [at a firm] because they are trying to hold on to their job for a whole range of reasons. I naturally think that in the legal context it probably makes more sense whether they would be willing to do an exit interview immediately or to do an exit interview a year later when they have stabilized. Exit interviews are done in the private sector, certainly in corporations, as a matter of course in their work.

This a role that an arm’s length entity, like the OBA, which could guarantee the privacy of individuals, who has a mechanism that allows people to provide feed back on their experience, would actually help to shift the power imbalance.

If it was something that the regulator (the LSUC) were to do, I would be proposing an expansion of the role of the Discrimination and Harassment Counsel. And the OBA might want to support that as a direction as well.

It would have to be arm’s length from the firms. It would have to be completely private. It would have to be non-punitive because if they knew that revealing their experience with the firm automatically meant they were triggering a complaint against the firm, you wouldn’t get the information. It is more critical to have a sense of how people are experiencing things.

"...the racialized person with disabilities, the Aboriginal person whose also the junior person in the firm with socio-economic pieces around poverty and student debt, etc. All of these things might have affected the way in which they engaged in the firm."

This is even more important when we take into consideration the way in which we use the term intersectionality – but I think about it more as compounded inequalities, so the vulnerability of the racialized women trying to speak about that nexus, the racialized person with disabilities, the Aboriginal person whose also the junior person in the firm with socio-economic pieces around poverty and student debt, etc. All of these things might have affected the way in which they engaged in the firm. The information we seek is probably going to be the most acute from the most vulnerable. And so the structure has to provide them with a maximum amount of protection for their statements, and a maximum amount of ability to be confident they will not experience some career reprisal.

What kinds of techniques would you use to ensure its effectiveness?

The Law Society has excellent staff and that means that people would have a confidence about the rigour attached to the information at the data-gathering process. If it formed part of the annual report, it would give us a longitudinal arc. It gives us consistency of the data gathering and it would give us a confidence. It would become data that is available to the profession as a whole, and its various organizations, and to the Law Society itself, as one of the foundations for its own policy work.

It would also lend itself to the possibility of – we don’t really think about them that way – but client groups of different types and of the expectations they are entitled to have. [The LSUC] regulates in the public interest, but that public is a diverse public, they are entitled to see that the profession - in the fields in which they wish to seek service from - have lawyers available to them with a diversity of knowledge and experiences. This is not me saying black lawyers have to serve black clients or black clients all want black lawyers but I do think it is important that we demonstrate a capacity as a profession as a whole to serve that diverse public.

In terms of technique, one of the most important things is transparency around the data and availability of the data.

The other piece would be to utilize two different levels: we have an Equity Advisory Group attached to the Law Society, so allow that Group to share its expertise with the Law Society in shaping what the report card would look like. This would bring together such a cross-section of persons that I think they would actually shape a very dynamic document.

What might be a next step?

There is something to be said for having a conversation on an annual basis between Benchers and the profession with the entities that deal with equity. Perhaps we have a one-day meeting where we are talking to each other being focused on what diversity means and what equity means. So, for example, the OBA Equality Committee, the Women’s Law Association of Ontario, CABL, RODA, the LSUC Equity Advisory Group – all of us together in a space with Benchers. The report card would be there: have the report card tied to a conversation with lawyers from the constituencies most directly affected.

It would bring about a different kind of accountability.

Professor St. Lewis has been re-elected as Bencher and is taking action on this and other issues, including student debt. She sees student debt as another facet of equality that warrants examination through the lens of diversity. "This is why I ran. I ran so I could put these things on the table. I want new lawyers, articling students and law students to know that I am very interested. They can talk directly to me because this is the voice I want to reflect."

If you have interest in this or other diversity issues, the OBA Equality Committee would be pleased to hear from you.

This interview has been edited and condensed.

About the Author

Juliet Knapton is a lawyer and lecturer at the University of Ottawa and for the Advocacy Club in Ottawa.

She is a past chair of the OBA's Equality Committee, Young Lawyers Division and Pro Bono Task Force.

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