As lawyers, we are trained in dealing with conflict. But when that conflict takes the form of discrimination, we may be at a loss for words.
This came into focus a couple of months ago when a friend of mine, a Muslim lawyer, told me about a run-in she had with another lawyer. My friend, whom I will call Sarah, was at a discovery a few days after Donald Trump’s election as the next president of the United States. During a break, she was lamenting with the court reporter about Trump’s election. The opposing lawyer, I will call him Matt, walked into the room and asked them what they were talking about. She told him and during their discussion Matt declared that he believed Muslims should be registered since ISIS is infiltrating the United States and Canada through Syrian refugees.
Sarah asked me what to do. I had no idea. As a lawyer, I have never encountered Islamophobia, likely because I am not a visible Muslim. My concerns usually revolve around explaining to clients that I don’t drink alcohol or politely declining to split the bacon-wrapped scallops without making it weird. A few weeks later, I realized that what happened to Sarah was not an isolated incident. Another Muslim lawyer, whom I will call Aisha, called to tell me about a work colleague who had tweeted a negative comment about Islam. She did not know how she could maintain the friendly banter they shared after seeing his tweet.
The fact that these incidents are coming out now is not surprising. In the current political climate, sensitive issues are becoming widely debated. And while it is a good rule of thumb to never discuss politics at work, during times like these, such discussions seem inescapable. Everyone has an opinion and is readily willing to share it.
So how should a lawyer respond to perceived racism by another lawyer? I discuss some options below:
Take the time to discuss the issue
This is the route I usually take. Since the 9/11 attacks, I am often asked questions about Islam. And, like many of my friends, I have become adept at differentiating those who are genuinely curious from those who are openly combative.
For example, “Lisa,” who wears a hijab, was at a pre-trial in Northern Ontario. She was waiting in the hallway with the plaintiff and his lawyer. The plaintiff looked at her and asked, “Why do you wear that on your head?” His lawyer looked like he wanted the ground to swallow him up. But Lisa calmly answered the question and they moved on.
There are benefits to this approach. It opens up a dialogue with someone who is interested in learning more. But it does not necessarily work in Sarah or Aisha’s situation. The tone of the individuals in their circumstances was hostile and their comments were offensive, at least to Sarah and Aisha. Discussing sensitive issues about religion is not easy, particularly in work environments. Emotion is involved on both sides and a discussion can deteriorate rapidly. Whether you should discuss these types of issues will often depend on the tone of the other person and your relationship with them. Tread carefully.
Make a complaint
As Sarah was at a discovery when Matt made his comment about a Muslim registry, several of her work colleagues encouraged her to make a complaint to the Law Society of Upper Canada. After all, Matt may have been in contravention of Rule 6.3.1-1 of the Rules of Professional Conduct, which states:
A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.
But Sarah was hesitant to make an official complaint. She froze after Matt’s comment and began rewinding it in her head over and over again, missing most of what he said next. She was worried that a complaint would require her to go into minute detail. After all, as a lawyer she had seen her fair share of witnesses whose credibility was undermined by their shoddy memory. Besides, she did not want to make waves and “make it a big deal.” I understood where Sarah was coming from. She did not want to make herself vulnerable to further attack.
She also had a busy practice to run and forgetting it even happened seemed like the easiest option. But I am uncomfortable with the fact that, other than some light chiding by the court reporter, Matt was able to escape unscathed from the situation. As another friend pointed out, Matt’s comment may have been an aggressive litigation tactic against Sarah, a move to knock her off her game when the discovery resumed. Also, I should note that the law society’s complaint process is not akin to a trial and it does make an attempt at an early resolution whenever possible.
Aisha’s situation is also difficult. Her colleague’s use of social media during personal time raises a host of issues that I won’t delve into here. Aisha did not want to silence her colleague. She noted that there is a fine line between free speech and hate speech and she wasn’t sure if her co-worker crossed that line. She unfollowed him on Twitter and kept her interactions with him to a minimum.
I do not know if there is a “correct” answer to Sarah or Aisha’s situations. Their incidents raise difficult questions that I am not sure how to answer. The best I can do is raise awareness that this is happening within our legal community. I can also get involved and I encourage you to do so as well. There are several legal organizations, like the Canadian Association of Black Lawyers, South Asian Bar Association of Toronto and the Federation of Asian Canadian Lawyers that promote equity and diversity within the legal profession. There are also non-legal entities, such as the National Council of Canadian Muslims, that are committed to challenging Islamophobia and other discrimination through community engagement. If you don’t have time to join an organization, then host a continuing legal education seminar on combating discriminatory practices. Most circumstances of discrimination in a legal environment are blurry and discussing them openly can help provide lawyers with the tools to address them.
Iman is an insurance defense lawyer at Lawson LLP. She sits on the Executive of the Ontario Bar Association's Insurance Law Section. She can be reached at email@example.com.