Written by: Nerissa Yan
Posted on September 17, 2019
“Diversity” is a trendy word in the legal profession. It is a popular topic at professional association luncheons or dinner functions featuring guest speakers who predominantly focus on how more diversity is needed on the bench and in the bar. That’s certainly a good thing. The mission to achieve diversity is ongoing and the very fact that it is still a popular topic means that we are not there yet. I often wonder what true diversity looks like and why it seems so far away. After putting some thought into this question, I think that it is a responsibility to be borne by each and every one of us.
The perfect courtroom lawyer
At a recent legal professional seminar for female litigators in Vancouver, a panelist shared with the audience that she grew up in a family of lawyers. Her dad was a litigator and a well-respected and influential advocate. Growing up in that environment caused her to form a certain impression of what a courtroom lawyer looks like: someone who looks just like her dad – a tall white man with a poised demeanour and a convincing voice. She is not alone in that regard. Obviously, in reality, not all litigators are white men. But that image of a typical courtroom lawyer contributes to prejudice, consciously or otherwise, in our society and in our profession. To put it bluntly, a tall white male speaking polished English with no exotic foreign accent is very often given more credit and taken more seriously by society, sometimes by the very people who are trying to make the profession more diverse. I have witnessed it first- hand. I have had, for example, the experience of being told that a client wanted a Caucasian lawyer in court and not me because I am Chinese.
Unfortunately, the image of a typical courtroom lawyer is still perpetuated by television shows and in the daily operation of the legal profession and its adjunct institutions: law school admission, law firm recruitment, nominations for judges, nominations for professional peer rankings and awards, and the like. The “elephant in the room” is that personal self-interest often trumps the idealistic mission to achieve diversity. A pragmatic understanding of how the world works leads many female and racial minority lawyers, consciously and subconsciously, to strive toward that stereotypical image of a competent lawyer, because life is a little easier when you are a little more “white”.
This phenomenon, however, begs for a sociological explanation – if a person cannot change their environment, the natural response is to adapt and change oneself to fit in, to survive, and to thrive. Many members of racial minorities who grow up or who live in Canada are afflicted by a racial and identity inferiority complex. The is certainly true of those in the legal profession. So very often, we see racial minority lawyers try to look or sound more like that tall white man with polished English and poised posture.
Diversity in how we sound?
Canada is a country of immigrants. A large proportion of the population speaks English at a non-native speaker level with a non-Canadian or non-British accent. However, that portion of the population is not fairly represented, for example, in positions of prominence and influence, whether in politics, in business, or in the judiciary. News media personnel in Canada speak standard English with a Canadian, American, British, or even an Australian accent, but we seldom or never hear news anchors speak with other accents. In my view, there is a widespread unconscious bias in Canada that English spoken in an accent with European roots is superior.
Seventeen years ago, at the age of 18, I came to Canada alone from Shanghai, China. Linguistically and culturally challenged, I took baby steps to learn English. I started with “this is a cake” or “that is a cat” and eventually progressed to the linguistic proficiency needed to earn a Canadian law degree. I now am a litigation lawyer at a law firm in downtown Vancouver. That process took me more than a decade. It wasn’t easy then, and it’s still not easy now. Even after years of language training in class and on the job, I know that I am always going to be a bit different in terms of my mannerism and how I sound compared to someone who grew up or spent most of their life in North America.
I remember one experience that happened in my last year of law school at UBC. I was in an advanced trial advocacy class taught by seasoned litigators and judges. In one class, one of the guest lecturers was a senior litigation lawyer and a partner at a national firm. She was of Chinese descent but born and raised in Canada. It was apparent from her words that she took pride in the fact that, being a “small Chinese woman,” she “made the cut” in a national firm and became a partner at a relatively young age. She spoke with a measure of force and confidence. Her English was clear and perfect: no foreign accent. She sounded, for lack of a better word, very “white.”
After the class, I walked up to her hoping to get some pointers and encouragement. After a few exchanges of pleasantries, I shared with her that I am very self-conscious about the fact that English is not my first language and I felt intimidated by the idea of becoming a litigator. I told her that the idea of having to articulate legal arguments in a language that I only learned how to speak and write after the age of 18 intimidates me. Her response was: “I can tell from the moment you opened your mouth that English is not your first language.”
Canada takes pride in its diversity, but there is no diversity in the standard way of speaking. The legal profession is the same. It appears that, generally, when someone speaks English with an “exotic” accent, regardless of the content, that person attracts less attention and is taken less seriously. I have also witnessed this reality first-hand in the Supreme Court of British Columbia.
Gender bias by the oppressed gender
An article published in 2012 by the Proceedings of the National Academy of Sciences of the United States of America (PNAS) describes a gender-bias study done within the science faculties at a number of universities. The result was astonishing. In a randomized double-blind study, science faculty members rated the employment applications for a laboratory manager position from applicants who were randomly assigned either a male or female name. Participants rated the male applicant as significantly more competent and hireable than a female applicant with the identical application. These participants also selected a higher starting salary and were prepared to offer more career mentoring to the male applicant. That is perhaps not so astonishing. However, the truly remarkable aspect of the study is that both female and male faculty members were equally likely to exhibit bias against the female named applicant.
In the legal profession, many diversity-themed seminars have revolved around empowering female lawyers by talking about how to break down the barriers for women to thrive in the legal profession. Various law firms have diversity committees chaired by female lawyers. However, what happens in real life, sometimes, makes one wonder how effective and genuine these talks and committees are, or whether they are simply for “show.” The irony is that it is still common that women, the historically underrepresented gender in the legal profession, continue to be their own oppressors. To be clear, I am talking about those occasions when senior female lawyers exercise the very kind of gender bias that they might protest against on other occasions to create barriers for female lawyers, especially young female lawyers.
I recall one anecdote to exemplify this phenomenon. I attended a legal professional seminar for female litigators at which one of the panelists, a female lawyer of South Asian descent, said that she preferred to work with male junior lawyers rather than females. She explained that, in her view, females tend to be more emotional and they are less able to leave their personal life outside of their workplace; moreover, she explained, female lawyers sometimes cannot make the time commitment that their male counterparts can. She told the audience that when she brings someone onto a file, she expects that person to give their full commitment and (for example) having to leave at 4:00 p.m. for a personal matter (i.e., child care) just does not work. No other female panelists called her out or challenged her. The seminar moved on.
In my view, this anecdote reflects the all-too-common sense of superiority over other women that is held by successful professional women who have “made it” in their profession. This attitude is dangerous. It perpetuates the status quo and runs counter to the gender-balanced environment that we are trying to create for female lawyers. The irony is that, in today’s social environment, a male lawyer would not have dared to say those words, at least not openly.
We are all guilty of living out the prejudices that we have developed by living in this society. It is important to self-reflect and call out the subconscious biases that we each hold. We will truly have a diverse bench and bar only when people no longer uphold the image of that typical courtroom lawyer; when women do not have to worry about not being hired because they have a child to pick up at 4:00 p.m.; and when people hear what others say but not how others sound. We will not achieve true diversity without calling out the racial and gender biases that each of us hold deep inside.
 Science faculty’s subtle gender biases favor male students, by C. Moss-Racusin, J. Dovidio, V. Brescoll, M. Graham and J. Handelsman, PNAS October 9, 2012 109 (41) 16474-16479; https://doi.org/10.1073/pnas.1211286109