Announcer: This is the Every Lawyer, presented by the Canadian Bar Association.

Marlisse Silver-Sweeney: Our episode today is about systemic racism in the legal profession. The topic was inspired by the Black Lives Matter protests around the world over the killing of George Floyd and other unarmed black people.

But the issue isn't a new one. Nor is it confined to across the border. An in-house Compensation Survey conducted this year by the Counsel Network found that racialized lawyers earn a mean salary of $12,000 below their non-racialized counterparts. They're also less represented at the two highest job titles.

The statistics in private practice are no better. In 2016 in Ontario there were 29.4 percent of all lawyers there were racialized, but only 7.8 percent of all law firm partners were racialized. And this is across all practices and practice sizes.

We're extremely privileged to have Arleen Huggins as our guest today. She's a partner with Koskie Minsky in Toronto where she has the Employment Law Group.

We'll be drawing on her expertise in this topic of employment and human rights law, along with her personal experiences as a black lawyer in Canada.

Arleen, thank you so much for being here today to discuss systemic racism in the Canadian legal profession.

Arleen Huggins: Thank you very much. I'm glad to be here.

Marlisse Silver-Sweeney: I want to start by acknowledging that this is a burden, asking you to do the work of explaining to us your experiences, and I was wondering if we can start there. Are you often called upon in this capacity? Do you feel comfortable sharing with us what it is like for you and how that affects your mental health, your practice and your free time?

Arleen Huggins: Well, I think the answer is yes, I'm often called upon and now just myself. Black legal colleagues of mine, we, in the last number of weeks and – been – especially in the last couple of weeks have been sharing our experiences. And certainly we have all noticed a significant uptick in people wanting to dialogue about what's going on, George Floyd and Black Lives Matter movement, how it's affecting us within the legal profession. And I've experienced that certainly. Many, many emails, many phone calls, many requests to speak to various organizations. That certainly have been the case in the last number of months, especially.

Is it a burden? I think I'll answer yes and no. It's a burden insofar as it's obviously time consuming. It's obviously in some parts very emotionally draining, certainly for myself and other colleagues. So in that sense, is it a burden?

Yes.

But I think many of us see it as a responsibility as well in terms of both educating and just bringing the dialogue out and making it more vocal. I think that's – we believe that's essential to both generally in terms of a systemic racism and anti-black racism, but in particular in the legal profession there's been a lot going on in the legal profession in the last number of years concerning both systemic issues within the legal profession, and in particular the situation surrounding black lawyers within the legal profession. It's been in the press quite a bit. It's still ongoing. So it is a matter that we think is necessary to bring out to the open.

Marlisse Silver-Sweeney: OK. Well thank you for doing that for us today and for all of our listeners. We appreciate you taking the mental energy, the time away from your practice to discuss these issues with us.

You just mentioned, actually, so it's a good segue actually to my next question. You mentioned that in the last few years there has been a lot of press about what's happening in the Canadian legal profession when it comes to battling systemic racism. And one piece in particular that really stuck with me was a piece in 2017 by Hadiya Roderique published in the Globe and Mail, an op-ed about her personal experiences of being black on Bay Street.

Would you share with us for you what it has been like for you to practice as a black lawyer in Toronto?

Arleen Huggins: I know Hadiya and we've sat on board of the – creating Association of Black Lawyers together. It took a lot of courage for her to publish her experiences. But she's not the first. Michael Baxter who's a Canadian lawyer who left Canada to practice in the States for similar reasons to what Hadiya expressed. And this was back in 1980s, I guess it was – would have been for Michael.

So this is not new. Within the legal profession in particular it started for me as early as law school where – I went to law school at the University of Toronto where I also did my undergrad. Another student asked me to talk to them about the special program for black students at the law school. And of course I was quite confused and asked what they meant. And you know, was told you know, the program – the quota program for black students here.

Well of course there was no quota program for black students at UofT at law school. My response was, oh, is there a program. And they mumbled something in embarrassment recognizing the inappropriateness of the question.

My point being, and quite frankly I wish there had been at the time. There was a program for indigenous students at the time. I think there should have been a program for black students at the time. But the point being the assumption, and this is part of the systemic problem, the assumption that you know, that black students are there because of a program.

I am not against programs that assist students from particular backgrounds, and I think they're necessary. And in fact UofT has now started in engaging in programs of that nature both in the medical school, in the law school, programs that assist and deal with the historic lack of opportunities for students – black students within, whether professional medicine, law, other areas.

But this kind of presumption of where our place is has continued throughout my career. I still get, after 30 years of practice, I still have people within the courtrooms, within the court houses, mistaking me for a court clerk. This is an area where lawyers are, that’s where we are. That's our place. Yet it's not my place, apparently. And I'm seen as not belonging in this place.

Marlisse Silver-Sweeney: So from the very first stages of law school up to partnership at a prestigious firm —

Arleen Huggins: Up to now. And this is indicative of a number of our experiences whether it be Hadiya, whether it was Michael's experience, whether other lawyers, I think the Law Society has looked at this issue in the racialized Licensees Task Force Report that came out a few years ago now, that looked at this issue, that looked at black licensees and lawyers in the profession and their experiences. And found exactly similar things to what Hadiya and Michael expressed they experienced in their legal careers.

So this is not a one-off. Hadiya is not a one-off. Michael was not a one-off. This is a systemic issues. These are systemic issues that require systemic address.

Marlisse Silver-Sweeney: Yeah, you're not a one-off either. You've had the same experiences.

And when we see the – you know, we'll see something like Hadiya's story that is really impactful. We see what is happening internationally right now because of George Floyd and the killings of other black Americans, the murders of other black Americans. We see a lot of reaction and when it comes to the legal profession we did see in 2017 a lot of reaction. We're seeing a lot of reaction now. There's the Black North Summit. We have over 200 companies signed on, Canadian companies including some, you know, Bay Street law firms.

This is a hard question, so do you think we're starting to dismantle the systematic racism in the profession? Do you see evidence of this happening at all? Where are you in that thought process?

Arleen Huggins: I think what we see are some efforts being made by some. Not across the board. And I think there are some firms who are making efforts in terms of making their workplace more inclusive and have engaged in initiatives to try to do that.

And organizations like the Canadian Association of Black Lawyers, the Black Law Students Association are engaged with them in doing so. So there is some progress, I think, being made.

I don't know that's across the board. We hear this primarily in mid to larger firms, but you have to realize the majority of black lawyers practice in smaller workplaces or they're in-house counsel. There are not necessarily the same types of efforts being made in smaller firms. And some organizations. Large organizations, what I would say is, number one, it starts with dialogue which is why myself and others are willing to talk and speak about this issue. But it also involves concrete action and it starts at the pipeline with students coming in. It starts with students, young lawyers entering into the firms and recruitment initiatives to encourage black lawyers to enter into these firms where they have historically been denied, refused entry.

So this is now the firms, in my view, have to actually reach out to engage black lawyers and students because historically they were not welcome. Not so historically, as Hadiya's situation shows. Not so historically.

Marlisse Silver-Sweeney: Three years ago. Yeah.

Arleen Huggins: Not welcome and I think this is – it's a whole facet of various initiatives that have to be looked at. Mentoring, what I call championship, many have called championship which is not just having a mentor, but having someone who has a vested interest in seeing black lawyers succeed. And their success is tied to that success. So they're valuation – evaluations and their own ability to advance in the firm is tied to ensuring that racialized lawyers are involved in key cases, engaged with key clients, develop those relationships that help you advance in a law firm context.

That has been missing in the past. It's been an absence. Black and racialized lawyers don't come from necessarily backgrounds where they have familial or other relationships that give them an edge into the profession.
I didn't know any lawyers when I started law. My family did not know any lawyers when I entered into this profession. I had no one to call up to ask what is the profession like? What do I have to do to succeed? You had to figure that out as you go.

So you start in a context where you're already having these challenges and they're magnified when you enter into the law firm where you may be engaged with individuals who grew up together, whose families, you know, had cottages on the same lake, or their kids went to the same summer camps or schools. Those types of relationships don't necessarily exist for racialized lawyers joining the firm.

And so you have to foster some way to engage black lawyers to make them feel welcome. I was the first black lawyer in my firm. I was the first, and only still, black partner in my firm. We're the first, still – and this is after 30 years of practice, you know, they're still the first, we're the first in many firms or one or two among hundreds in some instances, in some large firms.

And that's also a challenge that has to be talked about, addressed, and improved. The whole legal profession has to engage in this issue to move forward. And we have not moved much from where we were, you know, many years ago. But as I say, there are signs that things are improving in some respects. Not as fast as we would like.
And there's still a situation within the profession that some are denying our realities. Some are denying our realities, some are denying the experiences that we have shared. It is disturbing to see that there are members of our profession who are denying the Racialized Licensee Report of the Law Society. And these are benchers.

These are benchers within our profession who are denying the reality of the results of that report. We still have a lot of obstacles to deal with.

Marlisse Silver-Sweeney: Yeah. That's depressing isn't it?

Arleen Huggins: It's certainly depressing and disturbing.

Marlisse Silver-Sweeney: I wanted to draw on your legal expertise as well, and I think this is actually a good moment to do so. You talk about the fact that some people in the legal profession don't even recognize that systematic racism exists. As an employment lawyer, what would you advise somebody coming to you – you know, it's insidiously embedded within our organizations and institutions. Do you think law is effective in combating these processes?

Arleen Huggins: I think law can be used as a tool. I think there are direct and indirect ways in which law can be used as a tool. Besides the more traditional ways of accessing the Human Rights Tribunal, for instance, in instances of both direct and systematic discrimination.

That's a difficult thing for individuals to do. It's costly, number one. It's costly. And it is – you know, financially and otherwise costly. And one would hope that individuals do not have to go through that on a regular basis in order to get redress.

I think what I would say is – and what I see both in my employment and in my investigation practice, workplace investigation practices – we have to be – and when I say we, it's the collective we – more vocal and call out employers who are not engaging in initiatives that address and redress systematic inequities within their workplaces. There are differentials of income in terms of salaries, bonuses. Differential practices in terms of who gets bonuses. And on the basis upon which individuals receive discretionary bonuses.

Practices on advancement. Practices on promotion embedded in various employment practices are and can be systematic barriers that prevent individuals from racialized backgrounds from advancing.

It's about opportunity. It's about ensuring opportunities are equitable and fair, going beyond simply status quo. Because we know the status quo is not working for us. Status quo is not working for us.

Marlisse Silver-Sweeney: If you had a client who had the experiences that Hadiya had at her firm come to you and ask from an employment lawyer lens, what should I do, would you advise her to go through the legal process or do you think that would not be beneficial to her career?

Arleen Huggins:People come to me with a problem, my job is to try to help them solve the problem. In some instances my advice is a legal one and legal recourse. And some instances my advice is more strategic in terms of other mechanisms to address encouraging dialogue with their workplace. In terms of bringing issues to the attention.

In many instances people come to me and they're frustrated, they're discouraged, they're emotionally drained. And as a result they haven't had a dialogue with their employer about their situations. Or they're fearful.
So some of it is about accessing what avenues within the workplace are available to them. In many times it's enquiring about whether there is a mentor or a champion within the workplace that they identify with that they can connect with, that they can dialogue with to assist them in dealing with the issues. Obviously it depends on what the issue is.

So there are various and sundry mechanisms. In many instance, however, the internal mechanisms are really not there. They lack a mentor, they lack a champion. They lack people within the workplace which – to whom they identify and could have this dialogue with.

And so many are forced to take a legal route because they don't have internal solutions or feel they don't have internal solutions to a problem, and it forces them to take a legal route. And sometimes that's necessary.

But there's a whole discourse about what solutions may be available to address this. And luckily there are more and more internal solutions by way of policies, discrimination, harassment policies that are in place, internal mechanisms for mediation. And other processes. More and more employers certainly in my practice recognize the importance of these policies and recognize the importance of investigating complaints of discrimination, harassment on the basis of race or any other enumerated grounds. They recognize the importance to their workplace and their workforce.

Marlisse Silver-Sweeney: OK. So from your vantage point as an employment lawyer you are seeing some strides when it comes to actually not just having the policies but actually attempting to enact the policies.

Arleen Huggins: Absolutely. And attempting to change the workplace culture. Because ultimately that's what this is about. The policies are there to ultimately change the workplace culture and I'm seeing more and more employers who are – that's the goal. The goal is not the policy. The goal is to change the workplace culture. And that's as it should be.

Marlisse Silver-Sweeney: This might be a hard question, I'm not sure if this is something you speak to or not, but from your lens doing these workplace investigations, you could do a master's thesis on this, but what is the single-most effective or efficient way to change a culture that historically was racist?

Arleen Huggins: It's not an overnight process. And I think there is no one solution or way of attacking the issue. One of the key components is you need to know your workplace. The importance of data. Data collection is key within the legal profession, in terms of firms and other workplaces. Just desegregated data is key.

I've been into workplaces, they collect data, but they collect data on how many racialized people are in the workplace. I would argue that's not sufficient. There are many studies to show that even within racialized groups there is disproportionate treatment. So you can't just collect data on how many racialized people in the workplace. You have to delve into how many black people. How many Asian people. How many from various different constituencies.

That is how you get a true picture of your workplace, and that's key to address. Because there may be instances where certain communities require different strategies and different levels of strategy. Indigenous individuals, black individuals in particular come from a history, a historical context of oppression, white supremacy and instances of slavery that create a whole different dynamic than dealing with the other constituencies.

LGBTQ and their history of discrimination and hatred. These require different strategies within the workplace to address systematic issues and how you create a workplace culture that gives various – these various groups a place and power within these organizations.

Part of it is educating individuals who have not experienced racism in their lives. Have not experienced marginalization. Have not experienced the power differential or oppression. And have no context in which to talk about anti-black racism.

Marlisse Silver-Sweeney: I find that really fascinating. I wouldn't have picked data – I wouldn't have thought of data collection as the first thing that comes to mind. And that really shows me something. So thank you. That was just – yeah, a fascinating answer from your expertise.

I could talk to you all day and I know that you are pressed for time so I am not going to. But I did want to end with advice that you have based on your 30 plus years of personal experience, your advice as an employment lawyer, what advice do you have for racialized lawyers and for their allies going forward?

Arleen Huggins: Well first of all the importance of allies cannot be understated. We are the minority in these workplaces. You need allies. When I joined my firm I had allies. I had champions. I had partners and other senior lawyers who were champions that helped me navigate this thing called a law firm, which I had no experience with. You need to have mentors and champions.

And of all stripes. Not just racialized champions or mentors. And the fact is there may be no racialized mentors or champions in your firm because there are no racialized other people in your firm. And so you invariably are going to have non-racialized allies and champions and should have to help you advance within the firm. I think that's certainly something that is key.

As well, I think, is an outside network. One of the things that has always kept me grounded and sane is I have a network of racialized and in particular black female lawyers. My group, they know who they are, who on days that you experience the type of situations that Michael St. Patrick Baxter experienced in his job, or Hadiya experienced or others, you may feel quite demoralized. You may feel alone, very much alone. And sometimes you have to pick up the phone or go out for a coffee and meet those people who have shared similar experiences just to get encouragement, support. So you need that both within the firm and you need it outside the firm. You need people to vent to quite frankly.

And you need a firm that understands if not a true understanding because they haven't experienced these issues, an understanding and an acknowledgement that you have and are experiencing these issues. And I think that's critical. The support of the firm is about understanding and being empathetic to what you are going through. And to try to address that in whatever ways they can. And to be accountable for the initiatives that they're introducing.
And that's key. Accountability, if you don't have accountability all the way up the chain to the highest level, the partnership level, none of this is going to work. The endeavours of the firm have to be top-down in my view in terms of showing the rest of the firm how important these issues are. You have to know where you're going, and you have to know what's working, what's not working. And therefore you have to constantly measure how you're doing. And you have to be introspective.

And you have to ask questions. You have to ask those within the firms that you're trying to assist, how are we doing? What else should we be doing? People will dialogue with you. You know, if you – you know, some junior lawyers and students, they may not initiate the discussion because they don't know that the discussion is welcome. So – the firms have to engage them in discussion. Come to them and say, we want to hear you. We want to do what's right. We want to help, we want to change things. What should we be doing?

Marlisse Silver-Sweeney: Well, Arleen, thank you so much for your time speaking with us today and sharing your experience and your expertise. I know I speak for all of our listeners when I say that we really appreciate it and have learned a lot.

Arleen Huggins: And I'm very, very happy to speak with you today and I'm very happy that CBA is engaged in this equity broadcast and I enjoy listening to them and I'm happy to participate.

Marlisse Silver-Sweeney: Thank you again to Arleen for taking the time to speak with us today about systematic racism within the legal profession of Canada. For sharing both her experiences and her expertise.
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