FINAL REPORT ON EQUITY AND DIVERSITY IN ALBERTA S LEGAL PROFESSION

Transcription

1 FINAL REPORT ON EQUITY AND DIVERSITY IN ALBERTA S LEGAL PROFESSION Completed for the Joint Committee on Equality, Equity and Diversity By Merrill Cooper, Joan Brockman, and Irene Hoffart January 26, 2004 Calgary, Alberta

2 FINAL REPORT ON EQUITY AND DIVERSITY IN ALBERTA S LEGAL PROFESSION Completed for the Joint Committee on Equality, Equity and Diversity of the Law Society of Alberta; Canadian Bar Association, Alberta Branch; Faculty of Law, University of Calgary; and Faculty of Law, University of Alberta Completed by Merrill Cooper, Joan Brockman, and Irene Hoffart Funded by the Alberta Law Foundation January 26, 2004 Law Society of Alberta 600, th Avenue S.W. Calgary, Alberta, Canada T2R 9Z9 Tel: (403) Toll free: Fax: (403) Home page:

3 FOREWORD The Joint Committee on Equality, Equity and Diversity in 2003 commissioned a broad study on bias and equity in Alberta s legal profession. The Committee was motivated by concerns that discrimination and bias in Alberta s legal profession may be continuing to act as barriers to practice and professional advancement for some groups of lawyers. The Committee includes representatives from the Canadian Bar Association (Alberta Branch), the faculties of law at the University of Calgary and the University of Alberta, and the Law Society of Alberta and has broadened its mandate to include all aspects of equity and diversity in the legal profession in Alberta. The Committee contracted with a team of three consultants working under the auspices of Guyn Cooper Research Associates in Calgary to conduct the study: Joan Brockman, professor of criminology at Simon Fraser University, who completed the 1991 surveys; Merrill Cooper, principal of Guyn Cooper Research Associates; and Irene Hoffart, of Synergy Research Group. The objectives of this study are to determine if and how changes have occurred for women lawyers in Alberta since 1991; to collect baseline data on the nature and extent of bias in the profession on other grounds of discrimination such as race, disability, and sexual orientation; and to collect information about lawyers who move to the inactive list and the reasons motivating their decisions. The study includes written surveys of active and inactive members; focus groups with lawyers, law students, and articling students; and the development of an interview protocol to be administered annually to a sample of lawyers who move from active to inactive membership status. This work is to build on active and inactive member surveys conducted in 1991 by the then Committee on Women and the Legal Profession. The 1991 surveys obtained a descriptive profile of Law Society members and collected data on lawyers perceptions about and experiences with gender bias in the legal profession. The 1991 survey findings were instrumental to the Committee over the last decade in the development of a range of policies, guidelines and programs to address inequities in the profession. It is the hope of the Committee that this study will assist us in the years to come as we work towards developing further policies and programs that encourage and promote a diverse and inclusive legal profession. We gratefully acknowledge the support of the Alberta Law Foundation for funding the project. Thanks go to our consultants Merrill Cooper, Joan Brockman and Irene Hoffart for their commitment to the project. I personally also wish to thank the members of the Survey Steering Committee, including: Elizabeth Miller (CBA) Sandra Mah, Sheilah Martin QC (U of C), Doug McGillivray QC, Martin Kaga, Jeanne Byron (Equity Ombudsperson) and Susan Billington (LSA); and the past and current members of the Equality, Equity and Diversity Committee involved in the project including Madame Justice June Ross (former Chair), Yvonne Stanford (Vice Chair), Tudor Beattie, Gerry Gall (U of A), Cheryl Gottsleig, Laurel Watson, Judy Daniels, Everett Bunnell QC, Wilf Willier, Ian Zaharko John Holmes QC, Jennifer Koshan (U of C). Rhonda Ruston QC, Chair Equality, Equity and Diversity Committee

4 ACKNOWLEDGEMENTS We would like to thank all the members of the Law Society of Alberta who took the time to complete the surveys and to write about their concerns and observations. Thanks are also due to the lawyers, articling students, and law students who participated in interviews and focus group discussions. Your perspectives were invaluable and you contributions enormous. Thanks are due to the Law Society of Alberta and the Canadian Bar Association, Alberta Branch, for commissioning the consultants to complete the project. Many thanks are due to the Equity and Diversity Project Steering Committee, which has been responsible for the oversight and administration of the project and for providing guidance, advice, and assistance to the consultants. We would particularly like to thank Rhonda Ruston, Chair of the Steering Committee, for her passion and commitment in spearheading the project. The Equity and Diversity Project Steering Committee has included the following members: Rhonda Ruston, Q.C., Chair Martin Kaga Sandra Mah Sheilah Martin, Q.C. Douglas McGillivray, Q.C. Beth Miller Susan Billington, Policy and Program Counsel, Law Society of Alberta Jeanne Byron, Equity Ombudsperson, Law Society of Alberta We are especially grateful to Susan Billington, Counsel, Policy and Programs, for her tremendous support and assistance in completing all aspects of the project, and to her assistant, Michelle Riches, for providing administrative support to the Steering Committee and the consultants. We would also like to thank Don Thompson, Executive Director of the Law Society, for his sound input and guidance over the course of the project. This project was made possible through funding from the Alberta Law Foundation. The Foundation s financial support is gratefully acknowledged. The opinions expressed in this report are those of the authors and do not necessarily reflect the views of Joint Committee on Equity, Equality, and Diversity, the Law Foundation of Alberta, the Canadian Bar Association, the University of Calgary Faculty of Law, or the University of Alberta Faculty of Law. Joan Brockman School of Criminology Simon Fraser University Burnaby, B.C.V5A 1S6 (604) brockman@sfu.ca Merrill Cooper Guyn Cooper Research Associates #5, 222 Riverfront Avenue SW Calgary, Alberta T2P 0A5 (403) merrillcooper@shaw.ca Irene Hoffart Synergy Research Group 516 Sierra Morena Place SW Calgary, Alberta T3H 2X1 (403) synergyresearch@telus.net

5 TABLE OF CONTENTS FORWARD ACKNOWLEDGEMENTS EXECUTIVE SUMMARY i SECTION 1 INTRODUCTION. 1 SECTION 2 LITERATURE REVIEW INTRODUCTION RESEARCH HIGHLIGHTS SUMMARY OF THE RECENT RESEARCH SECTION 3 SURVEY METHODOLOGY QUESTIONNAIRE DEVELOPMENT SAMPLE AND ADMINISTRATION METHODOLOGY LIMITATIONS 15 SECTION 4 RESULTS FROM THE SURVEY OF INACTIVE MEMBERS INTRODUCTION: ATTRITION FROM THE LEGAL PROFESSION CHARACTERISTICS OF RESPONDENTS EMPLOYMENT REASONS FOR NOT PRACTISING LAW DOING IT ALL OVER AGAIN AND RETURN TO THE PRACTISE OF LAW PERSONAL EXPERIENCES WITH DISCRIMINATION BY OTHERS IN THE LEGAL PROFESSION PERCEPTIONS ABOUT DISCRIMINATION IN THE LEGAL PROFESSION TYPE OF DISCRIMINATION, IF ANY, EXPERIENCED BY LAWYERS CHILDREN SUMMARY OF FINDINGS ON THE INACTIVE MEMBERS SURVEY. 53 SECTION 5 RESULTS FROM THE SURVEY OF ACTIVE MEMBERS CHARACTERISTICS OF RESPONDENTS EMPLOYMENT EMPLOYMENT HISTORY IN LAW CURRENT EMPLOYMENT SUMMARY OF FORMER AND CURRENT EMPLOYMENT AND EMPLOYMENT EXPERIENCES CHILDREN AND THEIR EFFECTS ON CAREER NUMBER OF CHILDREN AND CARE OF CHILDREN EFFECTS OF CHILD CARE RESPONSIBILITIES ON CAREER DECISIONS SUMMARY OF CHILDREN AND THEIR EFFECTS ON CAREER DISCRIMINATION PERSONAL EXPERIENCES WITH DISCRIMINATION WHILE SEEKING EMPLOYMENT OR DURING THE COURSE OF EMPLOYMENT AND DISCRIMINATION PERSONAL EXPERIENCES WITH AND OBSERVATIONS OF HARASSMENT LAWYERS PERCEPTIONS ABOUT DISCRIMINATION IN THE PROFESSION LAWYERS ATTITUDES ABOUT VARIOUS DIVERSITY-RELATED ISSUES SUMMARY OF DISCRIMINATION IN THE LEGAL PROFESSION SECTION 6 RESULTS FROM THE EQUITY AND DIVERSITY FOCUS GROUPS FOCUS GROUP METHODOLOGY PARTICIPANT DEMOGRAPHICS FOCUS GROUP FINDINGS SUMMARY OF FOCUS GROUP FINDINGS SECTION 7 CONCLUSIONS 169 APPENDIX 1 APPENDIX 2 EQUITY AND DIVERSITY SURVEY FOR INACTIVE MEMBERS EQUITY AND DIVERSITY SURVEY FOR ACTIVE MEMBERS

6 EXECUTIVE SUMMARY Background In 2003, the Joint Committee on Equality, Equity and Diversity commissioned a study on bias and equity in Alberta s legal profession. The objectives of the study were to determine if and how changes have occurred since the 1991 study on gender bias; to collect more extensive baseline data on the nature and extent of bias in the profession on other grounds of discrimination in addition to gender, including race, ethnicity, religion, disability, and sexual orientation; and to collect information about lawyers who move to the inactive list and the reasons motivating their decisions. Two of the reasons motivating the Joint Committee to commission the study were anecdotal reports from members about ongoing discrimination in the profession, and Law Society membership data indicating that, despite the fact that equal numbers of men and women have entered the profession over the past decade, women lawyers, particularly those called to the bar in 1990 or earlier, have been leaving the profession in greater numbers and proportions than the men. Anecdotal reports from members also suggested that mid-sized and large law firms were experiencing challenges in retaining young women associates. The study included written surveys of active and inactive members; focus groups with lawyers, law students, and articling students; and the development of an exit interview protocol. Development of the Equity and Diversity Surveys was informed by the Law Society s 1991 surveys on gender bias; the review of the literature, including surveys of lawyers in Canada and the United States completed over the past decade; and pre-survey interviews and focus groups with 16 Calgary lawyers who are members of the historically disadvantaged groups targeted in the survey. The questionnaires were included with the May 2003 edition of The Advisory, the newsletter of the Law Society of Alberta. All of the 7,075 active members of the Law Society who had paid their fees and insurance dues as of May 22, 2003 were sent a copy of the Active Members questionnaire. Of the inactive members, the 539 members who had inactive member status, resided in Alberta, receive Law Society correspondence, and had moved from active to inactive status in the past 10 years were sent a copy of the Inactive Members questionnaire. Active members questionnaires were completed and returned by 905 respondents (13% of active members); 43% of respondents were female and 57% were male. Inactive members questionnaires were returned by 134 inactive members (25% of the inactive members meeting the criteria for inclusion); 56% were female and 44% were male. Eighty-seven individuals (15 men and 72 women) participated in 14 focus groups in five Alberta cities. As with all surveys, with the exception of census surveys, completion of the questionnaires was voluntary and subject to self-selection bias and, therefore, may not constitute a statistically representative sample from which conclusive inferences can be made to the entire population of Alberta lawyers. However, the demographic and practice breakdown of both active and inactive respondents is remarkably consistent with Law Society membership data in terms of gender, year of call, years as member, and geographic location. There is a slight over-representation of older male respondents on the inactive survey, compared to inactive Law Society members. Study findings Data from the survey of inactive members show that the majority of both the men and women lawyers who moved to inactive status in the past 10 years left the profession to look for more personally rewarding opportunities, to avoid the nature, stress and adversarial approach of the practice of law, or to find more balance with personal life. Only half of the inactive survey respondents reported that, if they could do it all over again, they would become a lawyer.

7 Likewise, data from the survey of active members revealed dissatisfaction among many respondents, particularly younger lawyers, with some aspects of the practice of law, including hours of work, work-life balance, the profit-driven culture of the profession and, for members of historically disadvantaged groups, discrimination that impedes their career advancement. Dissatisfaction with the culture of the legal profession was expressed by both active and inactive survey respondents in their additional written comments in the surveys and emerged as a strong theme in the focus group discussions. In general, these respondents made disparaging comments about the culture of the profession as being an old boys club, increasingly driven by the pursuit of profits, rather than justice. 71% of the younger respondents, compared to 22% of the older respondents, agreed that they would consider working reduced hours on a regular basis if they were not concerned about the possible detrimental effect of this on their careers. 81% of the younger respondents, compared to 55% of the older respondents, agreed that, in the practice of law, merit is often equated with the willingness to dedicate one s self to the workplace at the expense of family relationships. 64% of the younger respondents, compared to 12% of the older respondents, disagreed that lawyers who wish to take parental leave should bear some of the costs Perceptions about discrimination 92% of the women and 69% of the men thought that there is some form of bias or discrimination against women in the profession; 33% of the men and 14% of the women thought there was discrimination against men. Among active survey respondents, 91% of the lawyers of colour believed that there is racial discrimination in the profession, 73% of lawyers with disabilities believed there is discrimination on the basis of disability, 88% of gay, lesbian and bisexual respondents believed there is discrimination on the basis of sexual orientation, and 83% of women with children and 32% of men with children believed there is discrimination on the basis of parental status. Very few Aboriginal respondents completed a written survey, however, in focus group discussions, both Aboriginal and non-aboriginal participants strongly agreed that there is extensive discrimination against Aboriginal lawyers throughout the legal profession. The most common type of discrimination against women and other diversity groups is perceived to be discrimination in career advancement. Personal experiences with discrimination Without reference to the specific ground of discrimination, 39% of the active women respondents, 41% of the respondents of colour, 28% of respondents with a non-christian religious affiliation, 40% of disabled respondents, and 40% of gay, lesbian and bisexual respondents reported that they had experienced discrimination firsthand while seeking or during the course of employment in the past five years. Many of the gay, lesbian, and bisexual lawyers were not out, so discrimination on the basis of sexual orientation may be under-represented in the study. Few Aboriginal lawyers completed a written survey, but all but one of the Aboriginal focus group participants reported that they experienced discrimination within the profession on an ongoing basis, and it was often very serious and overt. For all the diversity groups, other lawyers and clients were most commonly responsible for the discrimination: 39% of women respondents, 26% of respondents of colour, 20% of gay, lesbian and bisexual respondents, 14% of respondents with disabilities, and 14% of women with children reported that they had experienced discrimination from other lawyers. Discrimination was most commonly manifested in the forms of racist and sexist comments, denial of opportunities to work on files, exclusion from opportunities to be involved in workplace activities

8 related to career advancement, exclusion from work-related social or business development activities related to career advancement, and negative career consequences as a result of having children or being a parent. In addition, sexual harassment continues to be a serious problem in the profession. Consequences of discrimination Analysis of the data on employment] revealed that, controlling for number of years at the bar and place and type of employment, women respondents worked at least as many hours as men respondents. Women without children worked significantly more hours than women with children and men with or without children. Controlling for number of years at the bar, there were no significant differences in billing hours between men with children and women with children who billed by the hour. Again, women without children billed more hours than the other groups. However, in the large firms, the men charged a significantly higher hourly billing rate than the women. Even when number of years at the bar, employment in the public or private sector, and firm size were controlled for, the men respondents earned significantly more on an annual basis than the women respondents. 55% of the women, as compared with 75% of the men, had children. Men were still far more likely than women, and lawyers without disabilities were more likely than lawyers with disabilities, to be partners in law firms. Women and members of other diversity groups were more likely than other respondents to be employed in the public sector. Changes since 1991 The survey results indicate that discrimination has decreased somewhat since This may be partially attributable to heightened awareness about equity and diversity in the profession due to the Law Society s model policies and the Equity Ombudsperson program, along with broader social changes. Slightly fewer men and women believe that there is gender bias in the profession, and there appears to be a smaller proportion of men and women who have personally experienced direct discrimination from other lawyers and from clients than they did in the past. Although the percentage of respondents reporting that they have experienced and observed sexual harassment has actually increased, this may be attributable to increased levels of awareness and sensitivity about sexual harassment among respondents, particularly among men lawyers. There is also some indication that attitudes toward and accommodation of the needs of lawyers with disabilities has improved, and that discrimination on the basis of race alone, at least for men lawyers, may have decreased. It appears that there is a greater perception that men of colour and people with disabilities fit into a large firm environment, although the same beliefs do not appear to be extended to Aboriginal lawyers or visible minority lawyers who manifest language, cultural, or religious characteristics that are different from the dominant cultural group. It appears that discrimination against Aboriginal lawyers is pervasive and profound. Women s advancement in the profession is still seriously hindered by the fact that they bear the children and they are involved in a disproportionate amount of child rearing activities compared to their male counterparts. Little progress has been made in the private sector to accommodate parenting by both men and women, although the consequences are largely borne by women. As a result, women leave the profession in sufficient numbers that they may still be unable to form the critical mass required to effect meaningful change in the profession. It is unclear whether the attitudes of younger lawyers, both men and women, offer some promise for a more balanced and less biased legal profession in the future or whether, as they age, these lawyers attitudes will change to conform to the more dominant views of older members of the profession.

9 SECTION 1. INTRODUCTION In 1990, the Law Society of Alberta initiated the Joint Committee on Women and the Legal Profession to examine issues concerning women in the legal profession. The Committee includes representatives from the Canadian Bar Association (Alberta Branch), the faculties of law at the University of Calgary and the University of Alberta, and the Law Society of Alberta. This Committee has continued its work and broadened its mandate to include all aspects of diversity. The Committee is now named the Joint Committee on Equity, Equality and Diversity. In 1991, the Committee commissioned a survey of Alberta lawyers to obtain a descriptive profile of Law Society members and to collect data on lawyers perceptions about and experiences with gender bias in the legal profession, and more limited data on discrimination on other grounds. The survey findings were used to inform the development of a range of policies, guidelines, and programs to address inequities in the profession. In 2003, the Committee commissioned another, broader study on bias and equity in Alberta s legal profession. The objectives of the new study were to determine if and how changes have occurred for women lawyers since 1991; to collect more extensive baseline data on the nature and extent of bias in the profession on other grounds of discrimination including race, ethnicity, religion, disability, and sexual orientation; and to collect information about lawyers who move to the inactive list and the reasons motivating their decisions. The Committee was motivated to commission the study by concerns that discrimination and bias in Alberta s legal profession may be continuing to act as barriers to practice and professional advancement for some groups of lawyers. As discussed in the following section of the report, recent studies have confirmed the ongoing existence of bias in the legal profession on the basis of gender, race, disability, sexual orientation, and age elsewhere in North America. The research also reveals a divide between the perceptions of members of the dominant demographic groups in the profession and those who are members of non-dominant groups about the existence and effects of discrimination. For instance, Caucasian lawyers are less likely to believe that discrimination is an ongoing issue for visible minority lawyers and male lawyers are less likely to believe that discrimination is still a significant issue for female lawyers. Local anecdotal evidence and reports from Law Society members suggested that the legal profession in Alberta may not be immune from the foregoing problems. Few data are available about the demographic composition of Alberta s lawyer population. No detailed demographic data are yet available from the 2001 Census of Canada, but the 1996 census indicated that 92.6% of Alberta lawyers were Caucasian, compared to 87.5% of the population of Alberta in the labour force. The greatest gap existed for Aboriginal people: 1.2% of lawyers were Aboriginal, compared to 3.4% of the labour force population. The next biggest gap was among people of Chinese descent, who comprised 2.1% of lawyers and 3.1% of the labour force. 1 Using different baselines, a survey of members of the Law Society of Alberta in 1998 found that 2% of members were Aboriginal, compared to 6% of the general population, and 1 Ornstein, M. (2001). Lawyers in Ontario: Evidence from the 1996 Census. A Report to the Law Society of Upper Canada. Table 3. Available at Final Report on the Equity and Diversity Project. 1

10 2% of members were Chinese, compared to 4% of the population. 2 Overall, almost one-third of Alberta lawyers are women, which is consistent with national averages. About half of Alberta s women lawyers have been practising for 10 years or less. No data have been collected on sexual orientation, disability, religion, or age for Alberta lawyers. Many people believe that the increasing representation of women and members of diverse groups within the profession means that it is only a matter of time before discrimination and other barriers are overcome. A recent editorial in the Calgary Herald is illustrative. In response to Governor General Adrienne Clarkson s observations about barriers to the advancement of women lawyers and low representation of Aboriginal and visible minority lawyers in the profession, 3 the editors commented that any problems would be overcome as the old boys retire and are replaced by more women, along with men with more contemporary attitudes. 4 Yet, the recent research suggests that, while matters may be improving in some ways, ongoing bias against diverse groups may prevent them entering and advancing within the profession to the point where they are able to influence meaningful changes in the culture of the profession. In other words, in the absence of concrete equity initiatives, change may continue to occur at a glacial pace. As succinctly summarized by Charles Smith, Equity Advisor at the Canadian Bar Association (CBA), it is interesting and somewhat paradoxical that the very profession which has been the source of such insight and eloquence on equality requires a healthy dose of selfexamination and positive action to address inequality and outright discrimination within its own ranks. 5 With these issues and concerns in mind, the Joint Committee on Equity, Equality and Diversity contracted a group of consultants to complete a research project to determine the extent to which bias and discrimination exists in Alberta s legal profession. The contract was awarded to a team of three consultants working under the auspices of Guyn Cooper Research Associates in Calgary: Joan Brockman, professor of criminology at Simon Fraser University, who completed the 1991 study; Merrill Cooper, principal of Guyn Cooper Research Associates; and Irene Hoffart, of Synergy Research Group. The Report on Equity and Diversity in Alberta s Legal Profession presents the findings of the equity and diversity study. 6 The Report is set out as follows: Section 2 provides a brief overview of the recent research on discrimination in the legal profession. Sections 3, 4, and 5 describe and present the findings of the Equity and Diversity Surveys of Inactive and Active Members of the Law Society of Alberta. Section 6 summarizes the findings of interviews and focus groups conducted with lawyers, articling students, and law students around the province. Conclusions from the study are provided in Section 7. 2 Law Society of Alberta. (1999). Final report on 1998 membership survey (Calgary: Law Society of Alberta). Figure 2. This survey used 1996 census data for the percentage in the general population. 3 (No author) Clarkson says legal profession ruled by men. Calgary Herald. February 28, 2003, p. A3. 4 Editorial. Old boys, new girls. Calgary Herald. March 2, 2003, p. A14. 5 Smith, C. (2002). Next steps on the road to equality in the Canadian legal profession. Touchstone. Newsletter of the CBA s Standing Committee on Equality. December The work commissioned from the consultants also included the development of a protocol for interviews to be completed annually with members of the Law Society who move from active to inactive status in the preceding year. The Report on the Exit Interview Protocol is a separate document which is available from the Law Society. Final Report on the Equity and Diversity Project. 2

11 SECTION 2. REVIEW OF THE RESEARCH 2.1 Introduction A review of the literature on bias and discrimination within the legal profession suggests that barriers to practice and professional advancement continue to exist for lawyers belonging to several demographic groups. First, hundreds of studies conducted over the past 30 years in Canada, the United States, and elsewhere around the world 7 have consistently identified and documented the existence of bias and discrimination against women in the legal profession. Although considerable progress has been made in some areas, recent studies confirm that gender bias continues, although sometimes in subtle forms, in areas such as hiring, remuneration, career advancement, accommodation for family commitments, and sexual harassment. Second, other research conducted over the past decade in North America has revealed discrimination and bias in the profession on the grounds of race, disability, sexual orientation, and age. As noted earlier, the research also reveals a divide between the perceptions of members of the dominant demographic groups in the profession and those who are members of non-dominant groups about the existence and effects of discrimination. For instance, non-visible minority lawyers are less likely to believe that discrimination is an ongoing issue for visible minority lawyers 8 and male lawyers are less likely to believe that discrimination is still a significant issue for female lawyers. 9 In addition to the obvious concerns about discrimination within a profession that provides itself on advancing equality in society, a strong economic case can be made for promoting diversity and new business approaches within the legal profession. There is considerable evidence linking workplace diversity with increased profits for businesses. Although no studies specific to law firms have been conducted, there is no reason to believe that law firms are somehow exempt from the pressures experienced by other businesses to understand and respond to diverse cultures in order to compete in an increasingly multicultural society and a global economy. 10 It has been predicted that knowledge of other languages and cultures will be increasingly valuable to lawyers as the percentage of the Canadian population who are immigrants from non-english speaking, non-christian cultures continues to grow, and as Aboriginal people become economically, politically, and legally stronger. 11 The Law Society of British Columbia has argued that valuing and fostering diversity within the legal workplace is key to the long-term health and viability of the profession; 12 others have stated that [i]f the profession does not reflect the community it will become irrelevant See, for example, Schultz, U.; Shaw, G. (2003). Women in the world s legal professions. (Oxford and Portland: Hart Publishing), which includes studies from Australia, Brazil, Canada, Finland, France, Germany, Italy, Japan, the Netherlands, New Zealand, Poland, South Korea, the United Kingdom, and the United States. 8 California Judicial Council, Advisory Committee on Racial and Ethnic Bias in the Courts. (1993). Fairness in the California state courts: A survey of the public, attorneys and court personnel. (Los Angeles: California Judicial Council). 9 For example, in Sanborn s US study 3% of male lawyers and 25% of female lawyers believed that prospects for advancement are greater for men than for women. Samborn, H.V. (2000). Higher hurdles for women. ABA Journal. Sept ADD 10 Goss, J. (1999). The value of diversity. Law Society of Alberta Benchers Advisory 60 (May 1999). 11 Young Lawyers Conference, Canadian Bar Association. (2000). The future of the legal profession: The challenge of change. (Ottawa: Canadian Bar Association). 12 Quoted in Goss, The value of diversity. 13 Strosberg, quoted in Bogart, W.A. (Ed.) (1999). Access to affordable and appropriate law-related services in 2020: Report of a roundtable sponsored by the Department of Justice, the Law Commission of Canada, the Canadian Bar Association and the Faculty of Law, University of Windsor. (Ottawa: Canadian Bar Association). Available at Final Report on the Equity and Diversity Project. 3

12 Likewise, as more women than men are now entering the profession in Canada, there will be a greater economic imperative for law firms seeking to find and retain top talent to address gender bias within their firms and the profession as a whole. One of the means to this end will be finding ways to address issues of work-life balance, which are experienced by both men and women lawyers and professionals in general, but have a disproportionate impact on women s professional advancement. 14 Efforts to arrive at reduced hour schedules have met with some resistance from law firms. Yet, recent research based on Washington law firms has shown that, contrary to popular belief, lawyers working reduced hours do not incur additional costs for firms and are equally committed to practice as full-time lawyers, virtually all practice areas are amenable to balanced schedules, and reduced hour schedules do not create problems for clients, even in high-powered firms. In fact, the research suggests that more balanced hours can increase firms staff retention rates, morale, client satisfaction, and profitability. 15 There is also some concern that the goal posts may be changing as battles are won. In 2000, Wallace surveyed lawyers in Alberta about the various stresses in their work and home lives. She found that the women and men working full time worked an average of 50 hours per week, however, associates and partners worked an average of 60 hours per week. The women and men who worked part time worked hours per week, and part-time associates worked 40 hours or more per week. 16 Similarly, other studies have found that part-time work in the legal profession is simply a normal full-time job with part-time pay. 2.2 Research highlights Women lawyers Studies conducted over the past decade on gender bias in the legal profession confirm that bias against women lawyers continues to influence women s experiences and outcomes in areas of practice, professional advancement, earnings, job satisfaction, and retention. As summarized by Kay and Brockman, [a]fter formal barriers to entry were dismantled, women continued to confront formidable barriers through overt and subtler forms of discrimination and exclusion. [O]ffical data on the Canadian legal profession reveal that women are under-represented in private practice, have reduced chances for promotion and are excluded from higher echelons of authority, remuneration and status within the profession. 17 Earlier research conducted in Alberta, British Columbia, Ontario, Quebec, and Saskatchewan during the 1980s and early 1990s 18 identified many barriers to women in the profession. For example, a survey of Alberta lawyers completed by Brockman for the Law Society of Alberta in 14 See Duxbury, L.; Higgins, C. (2002) The 2001 national work-life conflict study: Report one. (Ottawa: Health Canada); Duxbury, L.; Higgins, C.; Coghill, D. (2003) Voices of Canadians: Seeking work-life balance (Ottawa: Human Resources Development Canada). 15 Williams, J.; Calvert, C.T. (2001) Balanced hours: Effective part-time policies for Washington law firms (Washington, DC: The Project for Attorney Retention) Also see Williams, J. (2000) Unbending gender: Why family and work conflict and what to do about it. (New York: Oxford University Press). 16 Wallace, J.E. (2001). Juggling it All: A Study of Lawyers Work, Home and Family Demands and Coping Strategies: Report of Stage Two Findings (Report Prepared for the Law School Admission Council) at Kay, F.M.; Brockman, J. Barriers to gender equality in the Canadian legal establishment in Schultz & Shaw, Women in the World s Legal Professions, pp Reprinted from (2000) Feminist Legal Studies 8(2): For a summary of studies done in British Columbia, Ontario, Quebec, and Saskatchewan see Buckley, M. (1993). Synthesis of provincial law society reports (Appendix 4 to Bertha Wilson, (Chair), Touchstones for change: Equality, diversity and accountability (Ottawa: Canadian Bar Association). Final Report on the Equity and Diversity Project. 4

13 revealed that 97% of the women respondents and 78% of men respondents believed there was bias or discrimination against women in the legal profession. Over half of the women had experienced discrimination from other lawyers. Over 80% of the women and 42% of the men thought there was bias against women in career advancement, and respondents agreed that women (65% of women, 22% of men) and men (11% of women, 15% of men) were discriminated against via lack of accommodation for family commitments. Perceptions about discrimination against women were slightly higher among inactive (non-practising) members of the Law Society. 20 The findings of the 1991 Alberta survey and other early studies were used by Madame Justice Bertha Wilson in Touchstones for Change, her 1993 report on gender equality in the legal profession completed for the CBA. 21 Madam Justice Wilson recited a somewhat numbing list of barriers faced by women in the profession, including sexual harassment; salary differentials; difficulties in obtaining articles; difficulties in securing good files and problems with work allocation; problems in career advancement in terms of promotion and access to partnership; the lack of women in management and leadership positions; segregation into certain areas of practice; and an unwillingness to accommodate female parents who have family responsibilities. 22 These early studies and the Wilson Report sparked and informed the development and implementation of a broad range of equity policies and initiatives by provincial law societies and the Canadian Bar Association in the 1990s. 23 Such initiatives clearly raised awareness about bias and discrimination in the profession, but it is not known whether they have, in fact, influenced positive change. Subsequent research suggests that, while the nature and extent of bias against women has evolved over time, it does continue to exist. For example, Brockman s 1994 study of young B.C. lawyers (called three to seven years) 24 found many similarities between women and men in terms of why they went to law school and what they liked and disliked about the practice of law. However, women (16%) were more likely than men (8%) to predict that they would not be practising in five years. 25 The majority of women (88%) and men (66%) thought there was discrimination against women in the legal profession. Sixty percent of the women and only 4% of the men reported that they had experienced discrimination since entering the legal profession and 46% of the women experienced discrimination from other lawyers. The most frequently identified forms of discrimination were lack of accommodation for family (60% of women, 19 Brockman, J. (1991). Identifying the issues: A survey of active members of the Law Society of Alberta (A Report Prepared for the Joint Committee on Women and the Legal Profession). (Edmonton: Law Society of Alberta). See also, Brockman, J. (1992). Bias in the legal profession: Perceptions and experiences. Alberta Law Review 30(3): A similar study with similar results was done in British Columbia; see also Brockman, J. (1991) Identifying barriers: A survey of members of the Law Society of British Columbia. Prepared for the Law Society of British Columbia, Subcommittee on Women in the Legal Profession. (Vancouver: Law Society of B.C.) and Brockman, J. (1992). Bias in the Legal Profession: A Survey of Members of the Law Society of British Columbia. Queen's Law Journal 17: Brockman, J. (September, 1992). Leaving the Practice of Law: A Survey of Inactive Members of the Law Society of Alberta. A Report Prepared for the Joint Committee on and Inequality in the Legal Profession (formerly the Joint Committee on Women and the Legal Profession); Brockman, Leaving the Practice of Law: The Wherefors and the Whys. 21 For a summary of studies done in British Columbia, Ontario, Quebec, and Saskatchewan see Buckley, M. Synthesis of provincial law society reports (Appendix 4 to Wilson, Touchstones for change). 22 Wilson, Touchstones for Change, p Initiatives of the Law Society of Alberta include the implementation in 1996 of the Equity Ombudsperson and model policies, including guidelines on maternity and parental leave, equality in employment interviews, gender inclusive communications, alternative work schedules, and anti-harassment. These are available on the Law Society of Alberta website, A concise summary of CBA equality initiatives over the past decade can be accessed at 24 Brockman, J. (2001). in the legal profession: Fitting or breaking the mould. (Vancouver: UBC Press). 25 When the sample was drawn, 31.4% of the women and 25.6% of the men were left out of the sampling process because they had already left the practice of law; Brockman, in the legal profession, p Final Report on the Equity and Diversity Project. 5

14 42% of men) and barriers to career advancement (38% of women, 28% of men). Women respondents incomes were appreciably lower than men s and many women described their prospects of partnership in large firms as nonexistent. Similar patterns were revealed by Kay et al. in a 1996 second wave study of the cohort of lawyers in Ontario (called between 1975 and 1990) previously surveyed in The researchers concluded that, while considerable improvement in the mobility of women occurred between 1990 and 1996, sizeable gaps remain between men and women in salaries, promotion opportunities, and levels of job satisfaction. 27 For example, women were less likely than men to be partners (33% of the men and 17% of the women). 28 Although there was no significant difference in the average number of hours billed, women spent a greater proportion of their time than men on administrative work and uncompensated law-related work. As with other studies, women were less likely than men to be married or have children, and those who had children spent substantially more time than men caring for them. Results of the third wave study, completed in 2002, are not yet available. Kay s 1996 findings were echoed in a 1999 survey of Quebec lawyers, which found that, despite the fact that 40% of Quebec s practising lawyers are female, women had fewer opportunities than men, were less likely to become partners, earned less money, and were less satisfied with their ability to balance work and their personal lives than men. 29 In a survey of Alberta lawyers in 2000, Wallace found that 38% of the men who worked full time were partners, compared to 17% of the women. 30 Lower satisfaction rates among women lawyers were also reported in the Law Society of Saskatchewan s 1999 membership survey. The data showed that female lawyers are less satisfied than male lawyers, and significantly so for issues concerning economic rewards and career advancement, as well as those dealing with their standing amongst and treatment by other lawyers. 31 Similar findings have been reported in a vast number of American studies on gender equality in the legal profession. As just one example, the third status report of the American Bar Association s Commission on Women in the Legal Profession 32 completed in 2001 concluded that major barriers to equality, many of them unintentional, remain in the legal profession for women, lawyers of colour, lesbian lawyers, and lawyers with disabilities. Myths of meritocracy, gender stereotypes, inadequate access to mentoring and support networks, workplace structures (work-family conflicts, expected hours of work, gaps between formal policies and practice), sexual harassment, and gender bias in the justice system (disrespectful treatment, the devaluation of women s credibility) still persist. Based on a 1997 study on professional fulfilment, the Boston Bar Association attributed a precipitous drop in the U.S. in the advancement of women 26 Hagan, J.; Kay, F. (1995). in practice: A study of lawyers' lives. (New York: Oxford University Press). 27 Kay, F.M.; Dautovich, N.; Marlor, C. (1996). Barriers and opportunities within law: Women in a changing legal profession. A longitudinal survey of Ontario lawyers. (Ottawa: Law Society of Upper Canada, 1996), p Analysis of the first wave data found that regardless of experience and background characteristics, organizational settings and macro-social factors, men have consistently higher likelihoods of attaining partnership than women Kay; F.M.; Hagan, J. (1994). Changing opportunities for partnership for men and women lawyers during the transformation of the modern law firm Osgoode Hall Law Journal. 32(3): 413, p. 450; also see Kay; F.M.; Hagan, J. (1998). Raising the Bar: The Stratification of Law-Firm Capital. American Sociological Review 63: Kay, F.M. (2002). Crossroads to Innovation and Diversity: The Careers of Quebec Lawyers. McGill Law Journal. 47(4) Wallace, J.E. (2001). Juggling it All: A Study of Lawyers Work, Home and Family Demands and Coping Strategies: Report of Stage Two Findings (Report Prepared for the Law School Admission Council). 31 Law Society of Saskatchewan. (1999). Membership survey: Final report. (Regina: Law Society of Saskatchewan), p Rhode, D.L. (2001) The unfinished agenda: Women in the legal profession. (Chicago: American Bar Association, Commission on Women in the Legal Profession). Final Report on the Equity and Diversity Project. 6

15 to partnership to women leaving law firms because of the increased demands of private practice, coupled with the difficult balance of family demands. The Association concluded that it is virtually impossible to remain on the partnership track and work part time, even when parttime work constitutes more than 40 hours of work per week. 33 Reichman and Sterling tracked the movement of lawyers in Denver, Colorado and found that women move more often than men and are more likely to move downward than men. 34 Women leaving the practice of law Studies in Canada in the early 1990s showed that women left the practice of law in greater proportion than men, although not in as great a number. In 1991, 33% of the women and 28% of the men who were called to the bar in Alberta between 1976 and 1990 were no longer active members of the Law Society. In total numbers, 1012 men and 443 women called during those years were no longer active members. 35 A 1991 survey of members of the Law Society of Alberta who had become non-practising between 1987 and 1991 found that over 60% of the women and 44% of the men called in 1978 or later 36 expressed dissatisfaction with the balance between their work and personal life when they were last practising law in Alberta. This lack of accommodation was seen as a form of bias against women by 65% of the women and 23% of the men. It was also seen as the most prevalent form of bias against men by the women respondents (14%) and the men called in 1978 or later (22%). In terms of why they left the practice of law, women most often cited hours demanded by practice (73%), then stressful nature of work (61%), lack of flexibility in firm (60%), felt burnt out (43%), child care commitments (42%), and wanted to use different skills (38%). Only 30% left for a better position outside law. The men who were called in 1978 or later cited wanted to use different skills most often (47%), followed by adversarial nature of work (46%), cannot find a job (45%), stressful nature of work (43%), hours demanded by practice (40%), and better position outside law (36%). 37 In her 1990 survey of Ontario lawyers called between 1975 and 1990, Kay included lawyers who had left the practice of law, and she used a life course perspective (asking respondents to list all of their jobs and absences from the practice of law in order to examine their occupational histories). In examining the life course of 1009 lawyers who had joined the profession initially by entering private practice, Kay found that regardless of background factors, human capital, work-related variables, market conditions, job satisfaction, or commitment, women experience more rapid rates of transition out of law practice. When these factors are taken into account, she found that women leave law 60% more quickly than men. Departures occurred more quickly (123%) from small firms with fewer than ten lawyers. 38 She also found that lawyers who experience sex discrimination leave law practice 81% more quickly than their counterparts 33 Boston Bar Association Task Force on Professional Fulfillment. (1997). Expectations, reality, and recommendations for change. (Boston, MA: Boston Bar Association). 34 Reichman, N.J.; Sterling, J.S. (2002). Recasting the brass ring: Deconstructing and reconstructing workplace opportunities for women lawyers. Capital University Law Review 29(4): Brockman, Leaving the practice of law, p There was only one woman respondent and 36 men who had been called before 1978, and therefore the comparisons were made between three groups; see Brockman, Leaving the practice of law, for more detailed information. 37 Brockman, Leaving the practice of law, pp For a similar study in British Columbia, see Brockman, J. (1992). "Resistance by the club to the feminization of the legal profession. Canadian Journal of Law and Society. 7(2): Kay, F. M. (1997). Flight from law: A competing risks model of departures from law firms. Law & Society Review 31(2): 301, p Final Report on the Equity and Diversity Project. 7

16 whose work environment is not so hostile. 39 As with the studies in Alberta and British Columbia, Kay found that men more often identified improved opportunities elsewhere as a motive for leaving law, while women were more inclined to report feeling pushed out of law for reasons of balance and quality of life. 40 Parental leave actually reduced the risk of women leaving by 74%. 41 In light of these findings and the fact that women move 37% more slowly to partnership than the men, Kay concludes that her data support the ghettoization perspective rather than the genuine integration of women into law. 42 The 1999 survey of lawyers in Nova Scotia asked lawyers why they had left private practice. Forty-six percent of the women identified a combination of remuneration, inflexible hours, and childcare difficulties, whereas 79% of the men identified remuneration only. 43 Lawyers of colour and Aboriginal lawyers Canadian and American research completed in the past decade has revealed bias and discrimination against lawyers of colour and Aboriginal lawyers. Although there are blatant examples to the contrary, for the most part overt discrimination and racism have been replaced by more subtle forms of discrimination, making it hard for non-visible minority people to appreciate or even acknowledge the existence of covert, reflexive, or subconscious racial biases. 44 For example, some have observed that a lawyer who speaks with a heavy accent or whose mannerisms may be cultural in origin is perhaps even subconsciously given less credit than one whose background is much more similar to that of [a] judge 45 or other legal professional belonging to the dominant cultural group. Based on demographic and other data collected on visible minority lawyers and law students, the CBA concluded that systemic racism is widespread within the profession. 46 These data show, for instance, that visible minority and Aboriginal law students have much less success in finding articles, and are less likely to be hired after articles. 47 Discrimination continues after lawyers are hired. For example, in the 1991 Alberta survey, one-third of the lawyers who identified themselves as visible minorities reported that they had experienced discrimination from other lawyers based on their race. 48 More recently, visible minority law students and lawyers consulted by the CBA reported that law firms discriminated against them by making assumptions about their skills, interests, and abilities that prejudiced their likelihood of being hired and, if hired, the nature of the work assigned to them. Employers assumed, for example, that Aboriginal lawyers would bring land claims work and East Indian women lawyers would bring 39 Kay, Flight from law, p Kay, Flight from law, pp Kay, Flight from law, p Kay, Flight from law, p Nova Scotia Barristers Society (undated) Professional/Personal Choices and the Practice of Law. (A Report of the Equality Implementation Committee of the Nova Scotia Barristers Society) at Mtima, L. (2002). Of words we ve never spoken and thoughts we ve never had Goal IX 8(3): 3-4. (American Bar Association. Commission on Racial and Ethnic Diversity in the Profession). 45 California Judicial Council, Advisory Committee on Racial and Ethnic Bias in the Courts. (1997). Final report of the California Judicial Advisory Committee on racial and ethnic bias in the courts. (Los Angeles: California Judicial Council). 46 St. Lewis, J.; Trevino, B. (Co-Chairs). (1999). Racial equality in the legal profession. Report 1. The challenge of racial equality: Putting principles into practice; St. Lewis, J. (1999). Report 2. Virtual Justice: Systemic Racism and the Canadian Legal Profession. Presented to the Council of the Canadian Bar Association by the Working Group on Racial Equality in the Legal Profession. (Ottawa: Canadian Bar Association). 47 St. Lewis & Trevino, Racial equality in the legal profession. Report 1, pp Brockman, Identifying the issues: A survey of active members of the Law Society of Alberta; Brockman, Bias in the legal profession, p Final Report on the Equity and Diversity Project. 8

17 poor women clients with family law problems. Other examples included lawyers being told they could not work on a particular file because the client did not want a lawyer with his or her particular ethnic background, or being repeatedly told racist jokes. 49 The only Canadian study specific to the experiences of Aboriginal lawyers was completed in 2000 by the Law Society of British Columbia. 50 Consistent with findings about the experiences of members of other visible minority groups, respondents identified numerous barriers experienced in articling, securing employment, and practising law. About 40% of respondents reported experiencing barriers during articling such as cultural insensitivity or racism by staff or other articling students, racist slurs and demeaning remarks, discrimination or favouritism in work assignments, or channeling into areas of law that were not of interest to them. Over twothirds of the respondents reported that they had experienced barriers in the practice of law, including discrimination or insensitivity by lawyers, judges, and clients; overwork and burnout; dissuasion from practising in areas of interest; and, less frequently, racist slurs and demeaning remarks. Thirty-seven percent of respondents stated that they had experienced discriminatory barriers in regard to employment matters, such as hiring, promotion and salary. The research suggests that bias against visible minority and Aboriginal women lawyers may be more profound than against white women lawyers or visible minority and Aboriginal men lawyers. The Boston Bar Association s 1997 study of barriers to professional fulfillment in the practice of law 51 identified both qualitative and quantitative differences between the experiences of and problems faced by women lawyers and both men and women lawyers of colour. While echoing the findings of other studies about the ways in which white women and visible minority men and women lawyers are marginalized in the profession, women of colour respondents believed that they faced more barriers based on race than on gender, and that they had to work harder and longer than white women, as well as white men, lawyers in order to prove themselves. Likewise, in its 1994 report on visible minority women lawyers, the American Bar Association concluded that the combination of being a person of colour and a woman is a double negative in the legal marketplace, regardless of type of practice. 52 Briefly, visible minority women lawyers must repeatedly establish their competence to professors, peers, and judges, perceive they are ghettoized into certain practice areas, and have more difficulty achieving prominence and rewards in the profession. 53 The California Judicial Council survey also found that visible minority women lawyers are not treated with the same respect as other women lawyers. 54 An American Bar Association survey of Aboriginal women lawyers in 1998 found that the experiences of these lawyers are similar to those of women lawyers and other visible minority 49 St. Lewis & Trevino, Racial Equality in the Legal Profession. Report 1, pp Ferguson, G.; Foo, K. (2000). Addressing Discriminatory Barriers Facing Aboriginal Law Students and Lawyers. (Vancouver: Law Society of British Columbia). The report was the third in the research project. Also see Law Society of British Columbia. (1996). Report on the Survey of Aboriginal Law Graduates in British Columbia (Vancouver: Law Society of British Columbia) and Law Society of British Columbia. (1998). Summary and Discussion of the Aboriginal Law Graduates Focus Groups (Vancouver: Law Society of British Columbia). 51 Boston Bar Association Task Force on Professional Fulfillment. (1997). Expectations, reality, and recommendations for change. (Boston, MA: Boston Bar Association). 52 Multicultural Women Attorneys Network (a joint project of the ABA Commission on Opportunities for Minorities in the Profession and the Commission on Women in the Profession) (1994). The burdens of both, the privileges of neither, p Multicultural Women Attorneys Network, The burdens of both, the privileges of neither, p California Judicial Council, Fairness in the California state courts. Final Report on the Equity and Diversity Project. 9

18 groups. 55 Three-quarters of the respondents had at some point confronted the assumption that their acceptance to law school was a product of affirmative action rather than ability. Respondents reported that this assumption carried forward to practice, where they had to repeatedly establish their competence to peers and judges. Most respondents stated that they had frequently encountered both gender and racial discrimination, often in combination, and most often in the form of negative comments and racial epithets and stereotypical characterizations regarding concepts of time, life on the reserves, or Native American attitudes. As with Aboriginal male lawyers, barriers to advancement encountered in the work environment included stereotypes that limit job opportunities; failure to be recognized as competent; pay inequities; insufficient mentoring; heightened scrutiny of hours, work product and performance; and undue difficulties in attaining partnership status or other promotions. In addition, several respondents felt they were not offered the same career development opportunities as white women lawyers. Gay, lesbian and bisexual lawyers Although there appear to be no Canadian studies specifically on sexual orientation bias in the legal profession, several American studies completed in the past decade have revealed extensive discrimination against gay and lesbian law students and lawyers. This bias occurs both in the court system and across the spectrum of legal employment, including discrimination in recruitment and articling interviews, discrimination in pay and benefits, barriers to professional success (including bias in work assignments, client development opportunities, and performance evaluations), and exclusion from social events. 56 A 1994 survey of lawyers conducted by the Los Angeles County Bar Association Committee on Sexual Orientation Bias 57 found widespread evidence of sexual orientation bias in the profession. Discrimination against lawyers on the basis of sexual orientation was identified by respondents as a widespread and often virulent problem that negatively affects performance evaluations, promotions, career advancement, benefits, and salary. These findings were echoed in a 2001 study conducted by the Judicial Council of California on sexual orientation bias in the court system. Focus groups conducted with gay and lesbian lawyers revealed a lack of equal employment opportunities and benefits for lawyers and court personnel, exclusion from informal legal system networks, disrespect and mistreatment due to sexual orientation bias and homophobia, and sexual orientation bias influencing judicial decision making. 58 Two surveys of New York lawyers reported discrimination against gay and lesbian lawyers in the court system. In a 1993 survey of legal aid lawyers, 78% of whom identified themselves as heterosexual, 43% of respondents reported that they had witnessed some form of discrimination on the basis of sexual orientation in the court system. 59 Similarly, in a 1997 survey of gay and 55 American Bar Association, Commission on Women in the Profession; Commission on Opportunities for Minorities in the Profession; Federal Bar Association; and Native American Bar Association. (1998). The burden of both, the privileges of neither. A report on the experiences of Native American women lawyers, p King County Bar Association. (1995). In pursuit of equality. The final report of the KCBA Task Force on Lesbian and Gay Issues in the Legal Profession. (Washington, DC: King County Bar Association). Cited in Washington State Bar. (1999) Trends and issues affecting lesbians and gays in the legal profession. Washington State Bar News Online. 12. Available at 57 Los Angeles County Bar Association, Committee on Sexual Orientation. (1994). Report of the Committee on Sexual Orientation Bias. Los Angeles, CA: Country Bar Association). 58 Judicial Council of California. (2001). Sexual orientation fairness in the California courts. Final report of the Sexual Orientation Fairness Subcommittee of the Judicial Council s Access and Fairness Subcommittee. (Orange County, CA: Judicial Council of California). 59 Bar Association of the City of New York, Committee on Lesbians and Gay Men in the Legal Profession. (1993). Report on the Experience of Final Report on the Equity and Diversity Project. 10

19 lesbian lawyers in New York, 60 44% of respondents stated that it is a disadvantage in the courts to be perceived as a gay man and 35% of respondents stated that it is a disadvantage to be perceived as a lesbian. Respondents commented that gay and lesbian lawyers are less likely to be taken seriously by judges and other court personnel, and receive poor treatment in the courts. Over half of the respondents reported witnessing offensive behaviour or hearing derogatory remarks, largely from other lawyers. A 1995 survey of gay and lesbian lawyers in Minneapolis 61 found that discrimination on the basis of sexual orientation resulted in barriers in hiring, retention and promotion for gay and lesbian lawyers. Almost unanimously, respondents observed hostility toward gay and lesbian people in the legal workplace, particularly in private firms, which they felt created tremendous pressure to remain closeted. Respondents stated that the response to efforts to come out to supervisors or partners was often to keep it to yourself. The survey found that remaining in hiding requires an almost obsessive attention to secrecy, and that this takes tremendous time and effort. Respondents indicated that most gay and lesbian legal professionals perceive that being out at the office will result in adverse consequences ranging from the loss of important mentor relationships to termination. These outcomes are very real: most out gay and lesbian interviewees have paid a professional price for their honesty. The consequences of coming out were found to include poor performance evaluations, lack of promotion, poor work assignments and, in the most extreme circumstances, dismissal under the guise of poor performance. In addition, in many cases the leadership at the law firms would not acknowledge that there was a problem, and tended to deny that there were any gay or lesbian lawyers at the firm. It should be noted that, although the 1991 survey of Alberta lawyers did not ask respondents about their sexual orientation, three women and 11 men indicated they had experienced discrimination on the basis of sexual orientation. At that time, it was speculated that this small number is probably due to the fact that gay and lesbian lawyers are, for the most part, not revealing their sexual orientation for fear of discrimination. 62 Lawyers with disabilities Both Canadian and American studies have identified bias against persons with disabilities in the practice of law. As summarized in a 2001 article in The National, lawyers with disabilities are regularly subjected to pity, patronization, paternalism, and stereotypical false assumptions that they re generally less capable than persons without disabilities. 63 The author comments that there is a general perception that lawyers with disabilities are less likely to succeed in some fields of law, adding that this may be true to some extent, primarily because of lack of accommodations rather than any shortcoming on the lawyers part. He notes that some lawyers with disabilities opt to practice in areas that require fewer accommodations, rather than engage Lesbians and Gay Men in the Legal Profession. (New York: Bar Association of the City of New York). 60 Lesbian and Gay Law Association of Greater New York. (1997) LeGaL report on sexual orientation fairness in second circuit courts. (New York: LeGaL). Available at 61 Hennepin County Bar Association Lesbian and Gay Issues Subcommittee. (1995). Legal employers barriers to advancement and to economic equality based upon sexual orientation. (Minneapolis, MN: Hennepin County Bar Association). 62 Brockman, Identifying the issues: A survey of active members of the Law Society of Alberta. Discrimination on the basis of sexual orientation was also discussed by interviewees in a study of young lawyers in British Columbia although, again, respondents were not asked their sexual orientation. See Brockman, in the legal profession, pp Cumming, J. (2001). Access and Justice. The National (Jan/Feb 2001). (Ottawa: Canadian Bar Association). Available at /JF01.asp. Final Report on the Equity and Diversity Project. 11

20 in ongoing struggles with their firms to obtain the tools that they require to succeed in their preferred practice areas. 64 The most in-depth exploration of the barriers faced by lawyers with disabilities in Canada was completed by the Law Society of British Columbia in Interviews with 24 lawyers and law students with disabilities revealed that significant improvements with respect to both accommodations and attitudes have occurred over the past decade. Respondents who had had positive career experiences identified mentors, supportive colleagues, willingness of employers to provide accommodation, and their own self-initiative and hard work as greatly contributing to their success as lawyers. In addition, respondents reported that the stereotype that people with disabilities are generally incompetent and that those who are not are exceptional and inspirational had become somewhat less pervasive. On the other hand, virtually all of the respondents reported that they experienced ongoing discrimination, prejudice, negative attitudes, and physical access barriers in the profession. More than half of the respondents stated that discrimination eventually led to loss of employment, marginalization into solo practice, or early retirement. The most common problems included communication, print, and physical barriers in court rooms and workplaces, resentment about accommodations, negative stereotypes equating disability with incompetence, and social marginalization. The study found that such barriers frequently prevent career advancement and lead to overwork, burnout and failure in both private firms and government departments. 66 Lawyers with disabilities are seldom kept on after articling and finding employment appears to be difficult. 67 A study on the barriers faced by lawyers and law students with disabilities conducted by the Research Education and Advocacy Centre for the Handicapped in Ottawa identified many employment areas in need of improvement. Survey respondents observed that law firms and lawyer employers as a general rule have a long way to go before a majority lives up to the profession's obligations respecting affirmative action and disability accommodation for employees and prospective employees. 68 Here, again, most respondents indicated that their disabilities had some adverse effect on their career choices and their employment opportunities and realities. Law students seeking articles or making career decisions were advised to be prepared to work harder than their colleagues, and to seek out opportunities to prove themselves in order to overcome unfounded prejudices. A majority of respondents noted that they had avoided applying for articles or jobs with private firms because they did not believe they would be hired, preferring to work in public institutions with proven records on equity issues. Perceptions among disabled lawyers that private firms are less willing to hire and to accommodate lawyers with disabilities are perpetuated by negative stereotypes and, in some instances, by the current actions of lawyers and law firms. 69 Likewise, American research has found that many lawyers and judges with disabilities do not request needed accommodations 64 Cumming, Access and Justice. 65 Hill, L. et al. (2000). Lawyers with disabilities: Identifying barriers to equity. A report of the Disability Research Working Group of the Equity and Diversity Subcommittee. (Vancouver: Law Society of British Columbia). Available at 66 Hill, Lawyers with disabilities, p Hill, Lawyers with disabilities, p McChesney, A.; Nolan, R.; Schmieg, M. (2001). Advancing professional opportunities and employment accommodation for lawyers and other law graduates who have disabilities. (Ottawa: Reach), p. 13. Available at Also see David M. Lepofsky, D. (1991). "Disabled persons and Canadian law schools: The right to equal benefit of the law school." McGill Law Journal 36: McChesney, Nolan & Schmieg, Advancing professional opportunities. Final Report on the Equity and Diversity Project. 12