Diversity Week

Reflections on Davies and Diversity

Black Law Students' Association

A few weeks ago, a student exercised courage by raising a complaint in regards to a Davies Ward Phillips & Vineberg LLP (Davies) advertisement published by the Obiter Dicta. Davies swiftly pulled the ad and issued a public apology. The incident resulted in a myriad of reactions that highlighted a variety of opinions. The discourse touched on topics such as, but not limited to, racism, corporate culture, and diversity in the legal profession. To facilitate the discussion, Osgoode’s Black Law Students’ Association (BLSA) hosted a Town Hall meeting on Monday, February 6, 2012.

The Town Hall commenced with comments from Professor Trevor Farrow, who set the stage for a two-part discussion. The first half of the discussion focused on the Davies advertisement and its resulting discourse; the second focused on the broader concept of diversity in the legal profession.

While the majority of people who engaged vocally agreed that the advertisement Davies published was offensive and executed in poor taste, most of the discussion focused on latent problems highlighted by the ad and the subsequent apology.

The responses to the ad appeared to be two-fold: some were offended about the use of “slavies” in regards to the demanding nature of billable hours in the legal profession, while others were offended about the use of the term as it regards the Trans Atlantic slave trade.

While other Bay Street firms advertise promoting a meaningful work-life balance, Davies took a different approach. The dictionary states that a slave is “a person who works very hard without proper remuneration or appreciation.” It is troubling that a corporation would make light of an employer-employee relationship in such a manner. As lawyers and law students, it is discouraging to think that one’s hard work will be either meagerly or under-compensated. Further, by no means is employment in a Bay Street firm like Davies actually slavery. However, the ad works to discourage the increasingly illusive work-life balance necessary for both the mental and physical health of our professionals.

According to the Ontario Lawyer’s Assistance Program (OLAP), lawyers and judges are three times more likely than the average person to become clinically depressed and six times as likely to commit suicide. In addition, we are also three times more likely to become addicted to alcohol. In light of these facts, it should not be hard to understand how the advertisement can be seen as troubling. (http://www.olap.ca/VOLUNTEERHANDBOOK2010.pdf)

A quick Google search of the term “slave” produces a variety of images of black individuals held in bondage. Historically, many different groups of people were enslaved. In modern times, enslavement still occurs in many parts of the world. However, this should not minimize the fact that in North America, “slave” can evoke particular images, with a particular history – namely that of the North American slave trade. If a student or a group of students took offence to the Davies advertisement as it relates to the Trans Atlantic slave trade, can you honestly blame them?

In response to the association between “slavies” and the slave trade, Davies, the offending party, apologized and accepted the criticism; why do others have such an issue with it? If people feel a certain way about something, why is it up for debate? Are feelings, by their very nature, not up for debate in regards to whether they are right or wrong? Why can people not simply respect the fact that someone has a certain view and accept it?

The term “slavies” began many years ago with law students who used it to describe Davies’ work culture. Although students coined the term, it does not mean that Davies should endorse it. People use offensive language on a daily basis but that does not make it acceptable for a corporation to endorse such language and attempt to defend themselves by attributing the term to others. As law students, we should take heed to the complaint and stop using the term. Even if the term “slavies” did not personally offend you, the complaint draws attention to the potential to offend your colleagues by using it.

The apology from Davies stated: “it did not occur to our team (emphasis added) that we would be seen as making light of slavery.” For those who took offence to the ad or thought it to be in poor taste, the apology begs one to question the composition of their team. Many years ago, law firms were described as being an “old boys club.” A brief examination of the class photos around Osgoode symbolizes this time in history. As more women enrolled in law school and joined the legal profession, the “old boys club” had to change their attitude in response to the growing number of women around them. Although the attitudes in response to women in the legal profession are not perfect today, they are better than they once were. As a result, one could successfully argue that advertisements like “slavies” would not have made it to print if a more diverse group of individuals with varying sensitivities previewed it. If an individual on their team was sensitive to the issue of slavery, although they may appreciate Davies’ attempt at self-depreciating humor, they would likely err on the side of caution and take a stance that such an advertisement not run due to its potentially offensive nature.

While it is easy to point fingers at Davies, the fact of the matter is that the issue of a lack of diversity is not unique to Davies when one examines diversity in the legal profession. DiverseCity: The Greater Toronto Leadership Project, led by the Diversity Institute of Ryerson’s Ted Rogers School of Management, produces DiverseCity Counts, an annual report on diverse leadership in the Greater Toronto Area (GTA). The 2011 report states that although visible minorities compromise 14.4% of all lawyers in the GTA, they represent 6.6% of partners in law firms. Visible minorities also make up 8.3% of Judges, 10.5% of leaders on governing bodies and law schools, and 0% of Crown and deputy Crown attorneys in the GTA. The report concludes that visible minorities are under-represented in leadership positions within the legal profession. [http://diversecitytoronto.ca/wp-content/uploads/CountsReport3-full.pdf].

The results of the report seem staggering when we consider that in 2006, of the 2.48 million people in Toronto, 47% reported themselves as being part of a visible minority and there are signs that these numbers have since increased [http://www.toronto.ca/toronto_facts/diversity.htm].

Osgoode will be hosting Diversity Week during the week of February 13, 2012. This year’s theme is aptly titled: Why Does Diversity Matter? Interestingly, the theme was chosen prior to the discourse emerging from the Davies advertisement. A notable response to this year’s theme that came out of the Town Hall was that diversity matters because it is inherently valuable. It is well understood that working within our profession requires a level of impartiality wherein one does not impose their own personal values and beliefs on their clients. However, bringing people together from different races, genders, and backgrounds can bring different perspectives into the dialogue surrounding the transactions that occur in corporate firms.

All of this talk about diversity raises the question: How do you promote diversity within law firms? The Town Hall discussed affirmative action within the profession. Some individuals were in support of it and others voiced their concerns. Affirmative action would go a long way to increase diversity in the legal profession. However, would this diversity be meaningful? Would more qualified candidates be overlooked? Some felt that affirmative action overlooks the systemic issues that result in a lack of visible minorities enrolling in law school. Concern was also raised about becoming the “token minority;” a role that no Town Hall participants were interested in filling. Others felt that maybe it was time to move beyond the rigid requirements of quotas through affirmative action and foster a corporate culture of diversity instead. Ideally, firms would value the diversity of a candidate just as much as they would value previous work experience.

While there was no agreement on whether a quota system should be adopted within Canada, it was agreed that firms should do more to find a working model that encourages minority recruitment while promoting a culture of inclusivity.

To state the obvious, at the heart of a corporate law firm is a business that is concerned about its bottom line. In this regard, why should firms care about diversity when it may not have a clear correlation with their bottom line?

In May 2011, forty of Canada’s largest corporations publicly declared support for Legal Leaders for Diversity (LLD). The demand for diversity within the legal profession will now come from a place connected to a firm’s bottom line: their clients. LLD represents support for diversity and inclusion by general counsel in Canada. The program promotes diversity within in-house counsel at some of Canada’s top corporations while encouraging law firms to follow their lead. Furthermore, LLD promises to retain minority- or women-owned law firms whenever possible and to support firms whose employee base reflects a commitment to diversity and inclusion [http://www.ryerson.ca/content/dam/about/generalcounsel/pdfs/LLDUpdated.pdf]. The implications of the program and the pressure it puts on law firms to diversify could have significant financial impact and ultimately lead to an increase of diversity within the profession.

The message that resonated at the end of the Town Hall was that for diversity to matter, it must be meaningful. Diversity cannot merely be a charitable gesture towards inclusivity. Although one may argue that programs like LLD indirectly push diversity on a firm in a manner that may not truly be meaningful, one should also realize and appreciate the value that diversity brings to the legal profession.

The 2011-2012 BLSA Executive would like to thank everyone who participated in the Town Hall. It was a great success because of your invaluable input. Participants asked thought provoking questions of each other and shared thoughtful ideas. We would also like to extend a special thank you to Professor Farrow who helped us to frame the conversation and lead what turned out to be an enlightening discussion on diversity in the legal profession.