“The eye sees only what the mind is prepared to comprehend.”
― Robertson Davies, Tempest-Tost

After completing his legal education, Mr. Davis failed to find an articling position because he was Black. It took two special Acts by the legislature before Mr. Davis was admitted into the Bar of Ontario as an exception.[1] Eleven years later, Clara Brett Martin became the first woman in Canada to be called to the Bar.  At the time, women were not “persons” in the eyes of Canadian law and only “persons” could practise law in Canada.  Consequently, Ms. Martin’s admission into the profession also required an unprecedented Act by the legislature.[2]

The legal profession in Canada is no longer beleaguered by overt and unapologetic exclusionary policies and practices, particularly with respect to admission into the Bar. The number of women and racialized lawyers entering the profession has continued to increase.[3] Many believe that the loosening of controls at the entry level has created a level playing field – a sacrosanct merit-based system resulting in merit-based outcomes. Yet, upward mobility within the profession remains relatively elusive for lawyers from marginalised groups. Positions of leadership and power disproportionately remain the domain of the traditional elite, i.e. the Caucasian male, perpetuating standards, perceptions, values and mores of this dominant culture. The resulting cultural hegemony operates in an insidious manner, subtly and systemically discriminating against racialized and other minority lawyers.

Consider for instance the traditional legal interview, which mimics the choreography (and whimsy) of a blind date. First, candidates are prejudged on the basis of data and metadata on ethnicity, social status, place of origin, religion etc. contained in the resume.[4]  Those who survive the first cull are invited to an interview, which is a casual conversation about life experiences, pastimes, goals and carefully parsed weaknesses. If both parties like one another, a second interview with other members of the organization is arranged. A subsequent nod of approval from senior members of the organization culminates in an offer. 

The emphasis at every stage of the interview is on the candidate’s personality rather than her legal skills.  The million dollar question is inevitably one and the same – is the candidate a good “fit”? Without an enquiry into legal talent, it is presumed that a candidate who fits seamlessly into the organizational culture is a competent and successful lawyer. Considering that the dominant culture in most legal organizations is dictated by the disproportionately White male composition of its upper echelons, lawyers from marginalised groups find themselves presumptively disadvantaged in this race to “fit”. The pattern repeats itself in performance reviews, work distribution, promotions, training opportunities and the like resulting in exclusion of minorities on a systemic level notwithstanding a facially neutral system.

The Ontario Human Rights Commission describes systemic discrimination as “policies or practices that appear to be neutral on their surface but that may have discriminatory effects on individuals based on one or more Code grounds.”[5] Systemic discrimination does not necessarily entail intent and is often a consequence of unconscious bias.

Unconscious bias is a form of involuntary and quick “social categorization” on the basis of selective inferences, assumptions and emotional affinity towards people like ourselves.[6] Unconscious bias takes root when the human brain stores bits of information about different social groups based on experience and popular culture and uses these experiences to stereotype or judge members of these groups at a later time. Every individual harbours unconscious biases. Associating men with natural leadership qualities, women with supportive roles, “third-world” accents with low intellect, disability with incompetence are some examples.  More than 150 types of unconscious bias have been isolated. The following are common in the workplace[7]:

• Affinity bias: The tendency to like people like ourselves.
• Perception bias: The propensity to form assumptions about certain groups hindering objective judgement.
• Performance bias: The tendency to overestimate performance of members of high-status groups.
• Confirmation bias: The predisposition to seek information to confirm stereotypes.

When decision-makers in organizations, unaware of their biases allow them to run amok, certain social groups are systematically favoured over others. Qualified persons are excluded from positions and promotions, disengagement sets in, innovation and creativity get stymied and outcomes are consistently subpar.  Such is the pervasive and profound effect of institutional or systemic discrimination within organizations.

Starting in 2012, the Credit Suisse Research Institute conducted a study of more than 3,000 global companies over several years and found that companies with at least one female director consistently bring better returns and outperform on the stock market compared to companies with all-male boards.[8] Similarly, a 2015 McKinsey report on 366 public companies in the Americas and the United Kingdom found that those in the top quartile for racial and ethnic diversity are 35 percent more likely to have financial returns above their respective national industry medians.[9] These are other empirical studies similarly confirm that striving for diversity and inclusion is not just a matter of human rights but a business imperative. 

Organizations have several tools at their disposal to counter systemic bias and enhance diversity, such as structured interviews, blind resume reviews, diversity targets, bias training etc.  However, for law practices steeped in tradition and characteristically resistant to change, eliminating systemic bias necessitates a tectonic shift in culture and commitment at the highest leadership level. Piecemeal initiatives without centralised strategy and clear intention cannot move the needle on diversity or inclusion. Leaders must be the catalyst for change, unequivocally express their commitment to diversity and allocate sufficient resources towards the initiative. To this end, collecting and analysing statistical evidence on diversity must be top priority.  Systemic discrimination in and of itself is invisible and intangible. However, the result of systemic bias, namely differential outcome, is not only highly visible but measurable. Numbers on diversity serve as the proverbial canary in a coal mine indicating the health of the organization and efficacy of its diversity initiatives. The tone must be set from the top – only then will equal access to the profession translate to access to the profession as equals.