Just about every Black lawyer on Bay Street has a tale to tell about the racism – whether overt or covert – they’ve experienced throughout their career: drawing scathing rebukes for minor errors that white colleagues don’t seem to face; being mistaken for an assistant rather than a litigator; enduring comments about their hair and clothing, or blatant accusations of tokenism; being ignored in a circle of white colleagues, and left out of after-work drinks and client meetings.
For years, the country’s biggest law firms have been proudly posting messages of diversity and inclusion on their websites. Yet, with organizations on both sides of the border now at an inflection point when it comes to race, Bay Street is still overwhelmingly white.
According to the Law Society of Ontario (LSO) – the largest self-governing legal body in the country, with more than 55,000 lawyers and 9,000 paralegals as members – 19.3 per cent of the province’s lawyers in 2016 identified as racialized, a full 10 points lower than the population at large. A mere 3.2 per cent were Black, compared with 4.7 per cent of Ontario’s population.
As for the situation at the country’s largest law firms, comprehensive data either doesn’t exist or hasn’t been made public. To help fill in the gaps, The Globe and Mail sent questions about racial diversity to 20 of them (including Bay Street’s hallowed Seven Sisters: Blakes, Davies, Goodmans, McCarthy Tétrault, Osler, Stikeman Elliott and Torys).
While more than half provided information on racial diversity within their ranks, only five firms broke out data on Black lawyers in particular; two others confirmed the number of Black partners. (Many respondents cited the need to protect privacy and data collection policies that prohibit the disclosure of numbers so small the people behind them could be identifiable.)
Six firms – Osler, Bennett Jones, Davies, McMillan, Blaney McMurtry and Fogler Rubinoff – said they either didn’t collect the information or would not share it publicly; WeirFoulds declined to answer any questions for this story.
The Globe also conducted a visual analysis of photos and biographies posted on the websites of 16 of Toronto’s largest firms to estimate the number of Black partners represented. The result: roughly 35 out of around 4,000 partners. This is an imperfect estimate, of course, because it can’t account for how people self-identify. Still, many law students and junior lawyers perform a similar exercise, scanning through the photos on firm websites in search of others who look like themselves.
McCarthy Tétrault was one of the five firms that was most candid in its responses (along with Fasken, Goodmans, Dentons and Aird & Berlis), admitting that just 2 per cent of roughly 700 lawyers, including partners, and articling students at the firm are Black. (Dentons reported a similar figure.)
McCarthy’s CEO, Dave Leonard, says he’s not proud of its diversity numbers, but decided to share relatively detailed information anyway. “Transparency,” he says, “is part of how we’re going to solve this.”
“I stand up often and talk to our people about my white privilege and that too much of our partnership looks like me,” Mr. Leonard adds. “And I do recognize that I’m here because of hard work and intelligence and all the rest of it. But I’m also here because of my role and my place in society, and where I grew up and how I grew up and the colour of my skin and my gender.”
Hadiya Roderique chronicled five years of microaggressions in her essay “Black on Bay Street,” published in The Globe in November, 2017. Ms. Roderique had been hired as an employment lawyer at Fasken straight out of law school, where interviewers were wowed by her top grades and litany of extracurriculars. But she ultimately struggled to fit into the “upper-class white world” that dominates the corporate realm. “Big law could not accommodate the person and the colour I was,” wrote Ms. Roderique, who went on to do her PhD in organizational behaviour at the Rotman School of Management.
Ms. Roderique’s essay went off like a bomb inside the country’s biggest law firms. Linc Rogers, a partner at Blakes who is Black, remembers feeling there was a new kind of willingness to talk about how Bay Street could accommodate people from different backgrounds.
“Her thesis was there is a narrow corporate culture on Bay Street, and to succeed, you have to mold yourself to it,” he says. “She said out loud what a lot of people were saying in quiet conversations, and she said it with thunder. Everybody read it. Everybody talks about it.”
For this story, The Globe spoke with dozens of Black lawyers and those from other diverse backgrounds about their experiences at Bay Street firms. Some commented on the record; others asked to remain anonymous, concerned that even mildly critical remarks could impede their careers in what is still a relatively small community dominated by a handful of powerful players.
“I think systemic discrimination is unfortunately baked into the system,” says Vivene Salmon, president of the Canadian Bar Association. “I think you have to fight pretty hard to defy the odds.”
The Globe asked the 20 largest law firms in Toronto (most of which have offices around the country as well) questions about the diversity of their Canadian workforce. The following firms responded and most provided data from their most recent internal survey based on employee self-identification.
The world of Bay Street law is small. All together, according to trade publication Lexpert, the 20 largest corporate firms in Toronto collectively employ about 8,500 lawyers across the country, almost half of them in Toronto itself. For two decades, these organizations have been promoting the idea of diversity and inclusion, but their efforts have focused primarily on gender, often with the goal of reaching partnerships comprised of at least 30 per cent women.
While progress has come slowly on that front, Bay Street has generally not put the same emphasis on recruiting, retaining and promoting lawyers who are Black, Indigenous and people of colour (BIPOC) – or, for that matter, those with disabilities or members of the LGBTQ+ community. Even without published information on Black leaders at Canadian law firms, it’s evident the numbers are miniscule.
“We don’t collect data on this stuff, but if you poke around the firm websites, it becomes pretty clear the representation of Black people on Bay Street isn’t anywhere near what Toronto actually looks like,” says Marlon Hylton, who was a partner at Cassels before recently starting his own data, information and innovation law firm and affiliated tech company, INNOV-8 Data Counsel.
In 2010, the Canadian Association of Black Lawyers held an event to honour 17 Black partners known to work at major Bay Street firms. A decade later, that figure appears to have roughly doubled – but still represents less than 1 per cent of partners at top firms.
Beyond Bay Street, there were just 63 Black lawyers in Ontario who were partners at law firms of all sizes in 2016, according to the LSO. That’s just 6 per cent of Black lawyers overall; meanwhile, 18 per cent of white lawyers (about 4,800) were partners.
Black lawyers also tend to work as sole practitioners at a far higher rate than their white counterparts. In 2016, the LSO lists 31 per cent of Black lawyers in the province as sole practitioners, compared with 19 per cent of white ones. That suggests at least some don’t find a career path for themselves in Big Law and opt instead to set up shop on their own.
Data on the number of Black law students is also uneven – only a handful of Canada’s 20-plus law schools share demographic information. What information is available shows members of the Black community account for about 1 per cent of law students at both the University of Toronto and Queen’s University; York University’s Osgoode Hall is more representative, at about 8 per cent. Part of the problem is cost: Law students graduate with an average debt load of $83,000 in Ontario – particularly damaging for low-income and BIPOC students without the benefit of generational wealth.
Marie Kiluu-Ngila was one of just five Black students in her law class at U of T, spurring her to co-found Black Future Lawyers, a program to support and encourage Black students going into law. When CBC interviewed Ms. Kiluu-Ngila about the initiative in January, the firm where she was articling, Cassels, featured the clip on its website. In late spring, however, she learned she was one of two students out of 15 who wouldn’t be hired back. Despite several requests, she says she never received a clear answer why.
“It was very confusing – to hear that you’re so great, you have stellar performance reviews, to be told you’re an excellent student,” says Ms. Kiluu-Ngila, who is now looking for work in consulting, or with a government or financial institution. “It didn’t really add up.”
The hiring process is just the first hurdle Black law grads face, where a foreign-sounding name might scuttle your chances of getting an interview in the first place and an ineffable quality called “fit” dictates who gets hired and who doesn’t.
Since most students’ résumés look roughly the same, who gets an interview is based largely on grades. But even top marks might not be enough to overcome bias in favour of white-sounding names. One Black lawyer who now works in Ottawa told The Globe he applied widely to large Toronto firms with employment and labour practices. He had straight A’s in all the relevant courses, but never even got an interview – leading him to suspect it was related to his African last name. In fact, a 2016 study by Sonia Kang at the University of Toronto showed Black students who “whiten” their résumés get callbacks at a rate 2.5 times higher than ones who don’t.
Once past the résumé-screening process, further barriers include looking the part during speed-dating-style interviews and navigating awkward cocktail parties with talk about international travel, cottages and ski clubs.
Shaneka Shaw Taylor, now a partner at Boghosian + Allen, recalls the high anxiety she felt during in-firm interviews. “At various interviews, I felt excluded or not understood, in the sense that I just couldn’t resonate with some of the conversations, some of the questions, some of the experiences. And it wasn’t coming from a place of the interviewer meaning to do anything wrong – sometimes you can only speak to what you’ve experienced.”
Several lawyers who spoke with The Globe expressed concern that nepotism is also still common, with children, nieces and nephews of partners (or friends of partners at other firms) often flagged for interviews.
“One of the things that helps people get Bay Street jobs is connections and legacy,” says Hermie Abraham, who articled at Cassels before starting her own employment law practice. “If you do see Black students landing jobs at those firms, you know they’re outstanding.”
Even once you’re in, it can be a struggle to stick around and to attain the same level of pay as your peers (for in-house counsel, for instance, white lawyers make an average of $12,000 more than their BIPOC counterparts). “I’m not going to tell any Black lawyer at a major firm that being Black doesn’t matter,” says Raphael Tachie, a senior in-house lawyer at TD Bank. “I think it does.”
Mr. Tachie joined Blakes as a summer student in 2008 in part because there were five Black lawyers at the firm – “the most I’d ever seen.” But although Blakes made a concerted effort to recruit Black students, he later found many of them didn’t stay. (He left after articling because he was only offered a non-permanent position.) He now passes on the same advice to Black law students that a mentor once gave him: “Go into job interviews as if being Black doesn’t matter, but leave the room knowing it does.” That means turning on the charm to get the job, he says, then working harder than anyone else to keep it.
But even getting the chance to do that can be difficult. To climb the ranks, lawyers need to build a book of business, which means getting good work on important files, along with crucial client face-time. All that is doled out by partners, who for decades have tended to mentor and assign work to people they like – people who remind them of themselves.
“It might not be anything particularly malevolent on someone’s part, but it’s just that you’ve made a connection with the person in the next office,” says Blakes’ Mr. Rogers. “Maybe they went to the same school, vacation at the same spot, like the same sport. You have a connection, and you give them work. Those attributes are often tied to race and gender.”
When the CBA’s Ms. Salmon was a junior lawyer on Bay Street, she recalls working weekends and long hours on legal research, and then having to beg the partners to let her attend client meetings. “If you were a white guy, you wouldn’t have to beg,” she says. “The senior partner on the file would say, ‘Oh it would be good for your learning – why don’t you come along?’ ”
The culture is changing, some lawyers say, but invitation-only meals and tickets to major-league events remain a big part of business development and career advancement, and Black lawyers are often left out. Black women face a double bind because of their race and gender, says Jenelle Ambrose, in-house counsel with Grant Thornton and secretary of the Black Female Lawyers Network.
“There’s a discomfort in interrogating not just the things that you are doing, but the things that you aren’t,” Ms. Ambrose says. “Like not including people – why is it that someone isn’t really a fit? Why is it that someone is invited to golf or after-work drinks, and someone else isn’t?”
Then there are the consistent microaggressions that leave many BIPOC lawyers confused and thinking, “I’m pretty sure that’s racism,” says Mr. Hylton, who worked at McCarthy Tétrault before he was a partner at Cassels. Many of the lawyers who talked to The Globe had stories of being praised for being articulate – as though it were completely unexpected – or being told by a colleague, “I don’t see race.” Both women and men spoke of receiving comments on their hair, and one man wondered if letting his curls grow in might affect his job prospects.
“You walk around with this sense of a question about whether or not they think you belong,” Mr. Hylton says. “You know you’re just as smart, you do good work, but you still have that feeling of needing to do that much more than everyone else.”
On one occasion, Ms. Salmon attended a meeting with a group of white men when a lawyer on the opposite side of the file told her to serve coffee. “I essentially wasn’t invited to sit at the table, but I was told to get coffee for everybody else. That just shows you the effect of race and gender. It shows you you’re not considered equal.”
Lori Anne Thomas, president of the Canadian Association of Black Lawyers, has been in plenty of similar situations throughout her 12 years of legal practice. “These things come about in your day-to-day experiences, and you’re faced with a decision tree of how do you act, how do you respond? Am I the educator today, or am I the stern corrector? Or do I ignore it? And then, how do I do my job?” Ms. Thomas says. She owns her own criminal defence firm, which she says gives her the freedom to wear her hair dyed blonde and cropped short. But she often hears from CABL members about the pressures they face to look a certain way at corporate law firms: “What do I wear today? How do I minimize my Blackness to assimilate and accommodate? Do I wear the colourful tie that brings out my African heritage, or will that be perceived as ‘too Black?’ ”
In the wake of the police killing of George Floyd in Minneapolis, many Bay Street firms began to reevaluate their efforts on diversity and inclusion. At Stikeman Elliott, chairman Marc Barbeau sent a firm-wide email, acknowledging, “We’re by no means perfect.” Although it didn’t share overall numbers, the firm says it has made progress on hiring junior lawyers from diverse backgrounds, but admits it hasn’t done as well on retention and promotion. Stikeman’s leaders have been going through an “uncomfortable process,” says Mr. Barbeau, as they question why they came up short, “despite all our good intentions, our desire to be fair, to be equitable and to advance these things.”
Over at Gowlings, chief executive Peter Lukasiewicz says that when it comes to ensuring lawyers from diverse backgrounds make it to partner, “honestly, until recently, firms simply weren’t addressing that. … We know what some of the issues are and are addressing them.”
Last week, Norton Rose, Stikeman Elliott, Bennett Jones and corporate finance firm Wildeboer Dellelce signed on to a pledge associated with the BlackNorth Initiative, a new program to improve Black representation in boardrooms. The firms have committed to attaining seven goals, including hiring at least 5 per cent of their student work force from the Black community and employing Black or visible-minority leaders in 3.5 per cent of senior roles by 2025.
Yet, recent events have shown many in powerful positions have yet to confront the widespread and insidious barriers facing lawyers from diverse backgrounds. Stockwell Day resigned his position as a strategic adviser to McMillan in June after questioning the existence of systemic racism during a TV appearance. Both the firm and the business community overall were quick to censure Mr. Day for his remarks, which he made at the height of protests over Mr. Floyd’s death.
Mr. Day’s opinions were hardly unique in the world of Big Law, however. Months earlier, a co-ordinated group of benchers was elected to the board of the Law Society of Ontario after campaigning on a promise to overturn a statement of principles (SOP) that would have had lawyers and paralegals pledge to promote equality, diversity and inclusion. The SOP was scrapped in September, leaving many BIPOC lawyers feeling betrayed.
“It’s disheartening,” says Atrisha Lewis, a litigation lawyer at McCarthy Tétrault who was also elected as a bencher last year. “On the one hand, you see now a greater kind of attention and rhetoric focused on race. But at the same time, with all of this happening, you have this slate who very much campaigned on denying that systemic racism exists.”
In interviews with leaders from six firms – Stikeman Elliott , McCarthy, Cassels, McMillan, Gowlings and Blaney McMurtry – as well as lengthy written responses from others, Canada’s biggest law firms generally express a commitment to do better on representation and regret over their failures to date.
“We are aware that all of the large Canadian firms are dedicated to anti-racism and diversity in the legal profession, and are taking steps to address inclusion and retention of Black lawyers and partners,” Angie Andich, director of communications at Dentons, said in an e-mail last week. “We have been in touch with each other, nearly weekly, to address this issue.”
The research is clear on how to improve outcomes for lawyers from diverse backgrounds, says Ms. Roderique, who is now an equity, diversity and inclusion researcher and consultant. For starters, she’d like to see firms eliminate the “mystery” of the interview process and end subjective elements like cocktail parties and dinners, since they can penalize BIPOC candidates, some of whom may have never attended such an event. Firms should also take steps to make recruiting and retention more objective, she says, by removing names from résumés, using standardized interview questions and controlling the distribution of work. “It’s not rocket science,” she says. “They just have to actually follow through and do these things.”
To address the pipeline issue, many firms are involved with diverse student groups (14 of the firms surveyed sponsor the Black Law Students’ Association of Canada, for example), and several donate money to scholarships aimed at BIPOC students. McCarthy Tétrault said it plans to run a pilot project offering summer jobs to first-year law students, with an emphasis on recruiting from equity-seeking groups.
Most firms have also conducted at least some training around unconscious bias – usually for firm leaders and those involved in hiring – and some have rolled it out firm-wide or plan to (including Cassels, McCarthy, Gowlings and Davies). On the hiring front, McMillan, Gowlings and Fasken have begun using standardized interview questions. Lenczner Slaght, a litigation-focused boutique, was the first Canadian firm to implement anonymized résumé review, in 2018. Shara Roy, a partner and co-head of the firm’s student program, says the evidence so far is anecdotal, but in the first year, they hired 11 students, nine of whom were women and six of whom self-identified as racialized. Last year, the firm hired eight female students, three of whom were racialized. So far, none of the largest Bay Street firms said they have taken steps to make résumé review anonymous.
When it comes to advancement, almost all firms have some sort of formalized mentorship program, but many lawyers also spoke about the importance of getting good work. Most firms have controls in place to distribute work to junior lawyers, but some – including Blakes, McCarthy Tétrault, Osler and Fasken – have gone further, formalizing work-allocation processes in large practice groups or across the firm, taking subjective assigning decisions out of partners’ hands. Other firms say they’re considering similar initiatives.
Banks, pension funds and other big corporate clients are also ramping up demands on external legal providers to field diverse teams. American companies have been more aggressive on this front, says Kristin Taylor, deputy managing partner at Cassels, adding that large Canadian companies have started to require more detailed data from law firms on the issue. “Relying on clients to force us to do it is obviously a wrong-headed approach,” she says, “but with the support of clients for what we’re doing, it’s an easier sell within law firms to get out of their comfort zone and really focus on this.”
Committing to diversity and inclusion can help woo the next generation, as well as boost the bottom line, says Nikki Gershbain, chief inclusion officer at McCarthy Tétrault (a unique role among Canadian firms – she reports directly to the CEO and is a member of the management team). “All the research shows that organizations that are inclusive are more productive, innovative and profitable, and the people who work for such organizations have higher morale, they’re more productive, and they’re more likely to stay with the organization.”
Sandra Aigbinode Lange worked as a Crown lawyer before joining McCarthy’s Calgary office in 2017, a move she credits in part to its inclusion programs. She says the firm’s formal work allocation program has led to some some high-profile assignments, including the chance to argue a case at the Supreme Court of Canada. Although Ms. Lange notes she sees no Black judges in Calgary and only a tiny handful of Black partners at large firms, she still sees the possibility of partnership in her future.
“I carry this weight of my Blackness, and specifically my Nigerian heritage, on my shoulders, because so many people have invested in me, and so many believe in me,” Ms. Lange says. And although she sees no examples to follow, “I just feel I’ve got to do it. To show this province, this country, this world that a Black woman like me is smart, capable and just as right for the job.”
Multicultural Meanderings 