Chapter 9: Discrimination and Harassment in Law Practice
54 9.2 Discrimination and Harassment in Law Practice
Gemma Smyth and Priya Sharma
Introduction
Discrimination and harassment in Canadian law practice is, sadly, still far too prevalent. The first part of this section sets the briefest introduction to common and problematic forms of discrimination in law practice in Canada. It is impossible in a short Chapter to express the many forms of discrimination at play in law practice, but this Chapter attempts to set out some voices of people who have experience discrimination. Where possible, additional materials are referenced. Given that these stories are all too familiar to some students, this section might be more relevant for students and lawyers who do not experience discrimination as part of their daily lives.
The second part of this section defines harassment and its legal prohibitions both in human rights law and in professional codes of ethics.
Finally, this section ends with ways to report harassment, always leaving open the option not to report.
Note that there is significant historical research on some of these areas (eg, documenting a history of “first” lawyers with particular social markers). This section does not deal with a historical view, although many issues noted in these reports, books, and articles persist today.
Sexism in Law Practice
Sexism in law practice takes on many forms. Some are outlined here and some later in the section on harassment. Sexism in law is not new. Indeed, many reports have been written exploring this issue with limited structural change in the profession.
In 1993, the Canadian Bar Association published the first national examination of women in the profession and concluded that law firms were not “environmentally friendly” for women and must lose their “maleness” by overhauling a business model that was long ago built by men for men. The 326-page report, entitled Touchstones for Change, found that women earned less than men, didn’t advance as quickly, and often felt they had to choose between family and career.
In a 2018 article about women in the legal profession, of a sample of 10 female lawyers, 9 private law firm lawyers have moved to an in-house counsel position with companies or public institutions. This is largely because of the greater work-life balance that is associated with those firms. A “longitudinal study of 1600 lawyers over 20 years, compiled in 2013 for the Law Society of Upper Canada, put the departure rate for women at 52% compared with 35% for men.”
Women leave for a variety of reasons including wanting more control over their lives, rejecting the billable-hours model employed in private practice, subtle sexism, among others.
Many women lawyers in the profession who are pregnant – or who are entering the profession and have considered what it would be like to have children – assume that they would be looked at by law firms as a “potential liability”. This fear has basis in reality based on reports from the profession.
As noted in a 2021 Canadian Lawyer article, there are many ways to support women who become pregnant or have children in the profession including paid maternity leaves, shorter workweeks, policies that allow children to attend court, and so on.
Gender discrimination – especially intersectional forms of discrimination – can also have impacts on the quality and quantity of work in a private firm context. These impacts are more difficult to discern from social marker data alone. This excerpt outlines some of these impacts:
“Today, my female friends in Big Law [the American term for large, corporate practice] complain that they are asked to do clerical work while their male counterparts litigate and draft contracts. They’re expected to be the office caregivers and party planners, in addition to practicing law. They’re paid less and expected to look better… I’ve often been called: mean, icy, a bitch. Looking back at my time in law… I suffered imposter syndrome – meaning, I didn’t think I deserved to be at such a prestigious institution.” (Anna Dorn, “Bad Lawyer: A Memoir of Law and Disorder” (New York: Hatchett Books, 2021, 109-110).
A 2021 American Bar Association‘s report examining women in appellate practice found that
“[m]en arguing before the court outnumbered women nearly three to one – a ratio that has remained largely unchanged in the last decade… Women were more likely to represent and work for the government. In comparison, the gender gap was hte largest among private-sector attorneys – particularly those working on complex civil cases. If the rate of change remains constant, it will be another four decades before half of all attorneys arguing before the court are women.”
As noted earlier, the recent Canadian Cadieux report found consistently, worryingly high levels of psychological distress, anxiety symptoms, depressive symptoms, and burnout. There is significant nuance in the report regarding this issue, but undoubtedly many significant problems related to mental health and wellness experienced by women.
Discrimination & Gender Identity
Members of the transgender community in Canada continue to face significant barriers. The Ontario Human Rights Code prohibits discrimination and harassment because of gender identity or expression. However, many barriers remain for full inclusion for transgender lawyers in the legal workplace.
This article by non-binary, transgender lawyer Adrienne Smith identifies the significant and nuanced problems throughout the legal education and lawyering continuum:
Anti-Black Racism
Introduction
Black students face some of the most widespread and insidious barriers in the legal profession. Lawyer and graduate student Hadiya Rodriques’ 2017 Globe and Mail essay sparked a long-overdue reckoning with anti-Black racism on Bay Street and beyond. For a comprehensive, empirical examination of anti-Black, gendered discrimination in a US context (much of which exists in Canada), see Tsedale M. Melaku, “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism” (New York: Roman and Littlefield, 2019). Anti-Black racism infuses every part of law practice; a few manifestations are are discussed here.
Grooming & the White Gaze
One common source of anti-Black racism relates to grooming and hair. Black hair is often associated with slavery-era racist assumptions that set a white beauty standard. Lori Tharps, a professor of journalism at Temple University and co-author of Hair Story: Untangling the Roots of Black Hair in America discusses the history of Black hair in North America in this interview. “The Black Hair Syllabus” contains many fascinating perspectives, readings, and documentaries on Black hair, including a useful section on Black hair and politics with significant focus on Black women’s experiences.
Microaggressions
Microaggressions against Black men and women in the legal profession take many forms. It can include questions as to belonging in the profession through mistaken identities, appropriating language often associated with Black culture, and invasive questions such as “can I touch your hair”. It may also take the form of additional surveillance in public spaces, assumptions about capability, not being chosen in classes or for career-building opportunities (moots, law review, etc.). See Janee T. Prince, “Can I touch your hair?: Exploring double binds and the Black tax in law school”, (2017) 20(1) Univ of Pennsylvania Jl of Law and Social Change, online: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1204&context=jlasc
Kim Brooks’ research reinforced the prominence of anti-Black microaggressions in private practice. One of the interview subjects in her empirical work on “fit” in the legal profession stated (content forecast for anti-Black racism):
It’s not like I was … actively, consciously [hiding ethnicity]. It was very much what was happening around me. . .. You know, it sort of reinforced it. So, ah, there was one African Canadian guy I remember, who was the only African Canadian actually, who was working in the law firm during the time that I was there. He was only there as a student. [N]ormally, during the week, he would slick his hair back. You know, so he had a very, kind of, smooth look. But on the weekends, he didn’t; so, he had his natural hair on the weekend. And I remember him coming out of the office, and one of the senior partners in our corner, looking at him … and saying to him, in front of him, “Oh my god, I am so happy I didn’t see you coming out of a dark alley.”
Comments such as these reinforce racism in the profession and are simply unacceptable under the Ontario Human Rights Code and many workplace policies.
Resources for Black Students & Lawyers
There are some resources available for students to build community and professional networks including the Black Law Students Association (BLSA). BLSA has chapters at every law school Canada under the national umbrella of the Black Law Students Association of Canada (BLSA Canada). BLSA provides both informal and formal avenues to discuss legal policy issues, facilitate mentorship and career support. The Canadian Association of Black Lawyers welcomes all interested professionals to support black legal excellence. Formed in 1996, the CABL is dedicated to reinvesting in the community and attempts to support the community through many outreach activities.
As awareness of anti-Black racism increases in Canada, more formal and informal opportunities to build Black community in legal education and the profession are slowly building.
Anti-Indigenous Racism
Introduction
Anti-Indigenous racism is powerfully alive in the Canadian legal profession. As of 2018, Indigenous lawyers make up 2.9% of all Ontario lawyers, and of that, 57.2% identify as female.
Indigenous lawyers often report discriminatory stereotypes such as being mistaken for a client or a victim of domestic abuse. In British Columbia, a 2000 Law Society report found that 30% of Indigenous law graduates no longer practiced law, although only two were unemployed. 20% of Indigenous women who were called to the bar no longer practiced. The most blatant forms of discrimination experienced by Indigenous lawyers was discrimination or insensitivity by lawyers (37%); employment matters (hiring, promotion, salary) (37%); overwork and burnout (37%); discrimination or insensitivity by judges (32%); discrimination or insensitivity by clients (22%).
“But I was Wearing A Suit”
“But I was Wearing A Suit” (part 1 and part 2) are powerful mini-documentaries about the racism Indigenous people face in the legal profession.
Closed captions are available by following the YouTube link.
The “double bind” – essentially, the idea that someone walks an impossible line between appearing competent but therefore undesirable, or incompetent and thus not meritorious – is a significant barrier for Indigenous lawyers. Again, Brooke writes (content forecast for anti-Indigenous racism),
[Some lawyers] have to displace stereotypical assumptions (for example, that women or Indigenous people are not smart), while still allowing the normative lawyer to feel at ease or unthreatened. Deanna, an Indigenous woman, describes how she has to act to make sure a particular judge she appears before is comfortable with her: “There’s one judge . .. who’s very old-fashioned.. . . I’ve sort of learned to adapt . .. [I adopt a] false front that ‘oh, I’m sort of bumbling along and doing my best here sir, please help me’, and so he almost likes that sort of demeanour from female lawyers, so it wasn’t just me who sort of figured out how to adapt to him that way . . ’cause I find I get much more success doing that than being really assertive and aggressive…. I sort of have to dumb it down a little bit, almost, to make him feel not threatened perhaps.
This behaviour is almost a triple bind – both the usual problems of competence/incompetence, but the additional layer of self-betrayal that accompanies these requisite performances on behalf of one’s client.
Other Forms of Discrimination
There are many other ways that lawyers are discriminated against (often subtle, and sometimes not captured in the language of human rights). Many lawyers and academics have written about classism in legal education, the job search, and ultimately in practice. Again, Brooks quotes one of her research subjects:
[T]here’s another very important aspect of it, which is composure and carriage…. [I]f you have crooked teeth ….You know, you can look at someone, who has been well, I think of it as being fertilized. So, they were nourished properly. They’ve always been dressed properly, so they actually know how to dress…. They know that their pants need to be hemmed, where somebody else might leave it all crunched up at the bottom, because they were never, nobody took the care for that. They’ve had braces, so their teeth are not crooked. These things are right in the body.
And there’s mannerisms, how loud or not loud the voice is. Words and . . . expressions that a person uses when they . .. revert to their … more casual self, right? Which you do…. [T]hese [job] interviews are over multiple periods and hours over long meals… . Alcohol [is] involved. So, and that’s why that’s done…. Because they want to see all the different parts of the person and whether or not they’re going to be a good fit for the firm. So, if your speech, you know, or your mannerisms, or the way that you deal with waiters or whatever, you know, betrays a kind of roughness, or lack of polish, then, you don’t fit. And the way you get that polish is, you either self-teach, or, you just grew up with it, because … your parents were like that. So, you don’t ever question it. Whereas if you’ve been on your own, and you haven’t had that, you have to learn it. You have to adopt it. Otherwise, you’re not going anywhere. You absolutely will not get anywhere.
Some lawyers also report their weight is a source of discrimination that bars them from career advancement (See for example Rebecca Puhl and Chelsea Heuer, “The Stigma of Obesity: A Review and Update” (2009) 17 Obesity 941).
“You Don’t Look Like a Lawyer”
As noted above and reported in many legal contexts, law students and lawyers might have heard (or will hear) the comment, “you don’t look like a lawyer”.
Professor Joseline Jean-Louis Hardrick is an associate professor at the Western Michigan University Thomas M. Cooley Law School, and gives practical advice for students in her article “‘You don’t look like a lawyer!’: 6 ways to navigate professional and corporate spaces” (January 25, 2021) online: ABA Journal, https://www.abajournal.com/voice/article/how-to-respond-to-you-dont-look-like-a-lawyer?s=03).
What is Harassment?
The Law Society of Ontario defines harassment as including “unwelcome comments or behaviour when such conduct might reasonably be expected to cause insecurity, discomfort, offence, or humiliation to another person.” This is inclusive but not limited to “name calling, racial slurs, racist jokes, demands for sexual favours, sexually suggestive or obscene comments or gestures, sexist jokes”.
Harassment is normally a series of incidents, or persistent behaviours towards an individual to torment, undermine, frustrate or provoke a reaction from that person. Each behaviour or event, when isolated, may not be sufficient to constitute harassment and can seem inoffensive but a consistent incapacitation, intimidation, pressure or threat to another individual may be harmful. However, one severe incident may also have a lasting impact on the individual.
The Rules of Professional Conduct specify that lawyers and paralegals licensed in Ontario have legal and ethical obligations as professionals to deliver their services and engage in and conduct their employment practices in a manner that is free of discrimination and harassment (ss. 6.3 and 6.3.1).
The Ontario Human Rights Code defines harassment as “engaging in a course of vexatious [annoying or provoking] comment or conduct which is known or ought reasonably to be known to be unwelcome”. There are two additional relevant sections in the Code:
Harassment because of sex in workplaces
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. R.S.O. 1990, c. H.19, s. 7 (2); 2012, c. 7, s. 6 (2).https://www.ontario.ca/laws/statute/90h19#BK8
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).
Despite improvements in the legal profession for women, significant barriers remain. Women continue to report harassment in the workplace at rates much higher than men.
“In Canada, a survey of articling students by the Law Society of Ontario a few years ago found that 21 per cent of respondents had been subject to unwanted attention or harassment. Every month… the Law Society of Ontario’s Discrimination and Harassment Counsel receives approximately 15 complaints regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints.”
Reporting Harassment
There are several potential avenues to report harassment or discrimination.
- Complaints of harassment or discrimination in the provision of Law Society Services should be brought to the attention of Equity Initiatives at equity@lso.ca
- The Discrimination and Harassment Counsel is a free service available to the Ontario public, lawyers and paralegals where they handle specific claims of harassment filed against a lawyer or paralegal. Using the following outlets, you can file a claim:
- Tel: 1-877-790-2200
- Fax: 1-877-398-1100
- E-mail: assistance@dhcounsel.on.ca
- Policies of the particular workplace. Workplaces are required to have policies related to sexual harassment and a complaints procedure.
- Policies of the university (for example, the Student Code of Conduct).’
- There might also be province-specific legislation dealing with workplace (for example, anti-bullying legislation).
Discrimination and Harassment Counsel
In June 1999, the Law Society of Ontario launched the Discrimination and Harassment Counsel program that helps complainants to access legal advice and support independent from the LSO. The program became permanent in 2001. Both lawyers and paralegals have access the program.
Prevalence of Harassment in Law
In 2020, a report issued by the Discrimination and Harassment Counsel reported that there were 95 new complaints filed in that year (not including ongoing complaints). Of these the following significant findings arose.
Of the 95 new complaints, 38 raised substantive concerns about discrimination and/or harassment by licensees. Three of these complaints concerned the conduct of paralegals, and all three were made by other paralegals. Of the 38 new licensee complaints, 35 complaints were about lawyers. 25 of these complaints were made by members of the legal profession while16 complaints were filed by lawyers. 5 complaints were filed by articling students, LLP students, or law students (all women) while 4 were filed by paralegals.
Of the 25 complaints against lawyers made by members of the legal profession, 68% were made by women, and 70% of them voluntarily self-identified as racialized women and/or women with disabilities. 32% were made by men, and 89% of these complaints were made by racialized or men who have disabilities.
Of the 25 complaints from members in the legal profession, 56% raised allegations of harassment and discrimination on intersecting grounds including combinations of sex, race, disability, ethnic origin, age, and family status. 44% raised a single ground discrimination, primarily sexual harassment and disability.
Barriers to Reporting
Whether students and lawyers feel comfortable reporting harassment is another matter entirely. While more firms have adopted discrimination and harassment policies, there are barriers to knowing these policies exist. There are also cultural barriers to reporting harassment. Concerns about repercussions and power imbalances can be serious and real barriers to reporting. Ultimately, whether a student reports harassment is an individual decision.
As Doron Gold noted, “[c]an you imagine a young woman who’s six months from her call who’s being harassed at work, she could think: ‘This is wrong, this is unlawful and I will remedy it.’ But she can also think: ‘Maybe I need to go along to get along because I want my career. What if I’m known as the one who sued for harassment; will other people hire me?’” says Gold. “‘I believe in advocating for oneself, I believe in standing up for what’s right, I believe in protecting’ . . . but sometimes the most protective thing you can do is not fight.”
