The Law Society of Ontario's equity 'Inclusion Index' was a bad idea from the start

This approach will not reduce racism and could have the opposite effect

The Law Society of Ontario's equity 'Inclusion Index' was a bad idea from the start
John Fagan

At our Convocation on June 28, the benchers of the Law Society of Ontario voted not to publish an LSO equity “Inclusion Index” which had been compiled behind the scenes in 2019. Good. Convocation’s 2016 decision to try to create an “Inclusion Index” was a bad idea from the start.

The thrust of the “Inclusion Index” project was to try to develop a set of statistics which would put pressure on Ontario’s legal “workplaces” to hire and promote legal and paralegal talent based on candidates’ ethnicities, rather than on their mundane individual merits.

Others have pointed to these good reasons why the “Inclusion Index” project was a bad idea:

  1. the inherent wrongness of hiring applicants for positions or promotions in the legal and paralegal professions based on the applicants’ ethnicities; and,
  2. the serious flaws in the would-be gathering of statistics which had led to the errant conclusion in 2016 that an equity “Inclusion Index” was at all desirable or required in the first place.

I add here this reason: The “Inclusion Index” approach will not work to reduce any residual racism that might be lurking in the Ontario legal and/or paralegal professions.

Any high-profile program to create pressure to hire and promote legal or paralegal talent based on ethnicity, rather than on the basis of individual merit, will mean members of the ethnic groups which were supposed to “benefit” from the program of pressure will, after being hired or promoted, find that many at their “workplaces” will regard them as “affirmative action” (or “employment equity”) hires or recipients of promotion, irrespective of whether “affirmative action”/“employment equity” had any role whatsoever in their being hired or promoted. The resultant mutual resentments and tensions will prolong, not shorten, the remaining time before we can all safely say that any residual racism in “legal workplaces” in Ontario has been eradicated.

The fastest and proper way to conquer any residual racism in the Ontario legal or paralegal professions today is to confront and fight individual instances of provable discrimination based on ethnicity, as and when they arise, by the traditional methods of accusation, proof, due judicial or quasi-judicial findings, and enforced due consequences for proven discriminators.

Some will argue that this “fight individual acts of discrimination” approach puts too much burden on those who must make the accusations. My response: sorry, this is the fastest way to get us permanently past any residual racism in our professions. This approach is how the 20th-century civil rights movement worked successfully and was the quickest way to destroy the pernicious, godforsaken concept of “race” as a divider of humanity.

To lessen the burden on the complainants in the “fight individual acts of discrimination” approach, I’m urging LSO to use its discipline tribunal program to make proven discriminators reimburse successful complainants for their total proven economic damages and costs. An LSO-funded “whistleblowers’ financial protection” program could cover successful complainants’ proven monetary damages and costs in the first instance, if necessary, with the LSO then chasing (with all its discipline tools) the discriminators for reimbursement. This approach would work.

As things stand, though, the LSO is still mired in the “Inclusion Index” approach. On June 28, Convocation dumped the 2019 “Inclusion Index” product only on narrow grounds of defect relating to the 2019 work product itself, including its staleness, and did not find any fault with the overall “Inclusion Index” project. The LSO’s equity and Indigenous Affairs Committee report that day, recommending not publishing the 2019 work product, ended with the following announcement (on which Convocation was not even asked to comment one way or the other):

“Next Steps: The Committee [meaning the EIAC] will now proceed to consider the development of a new protocol for data collection and publication of data pertaining to equity, diversity and inclusion in legal workplaces.”

As a bencher at the June Convocation, I moved a motion, seconded by Bencher Murray Klippenstein, that there be no further work on any LSO equity “Inclusion Index” (or “protocol for data collection and publication of data pertaining to equity, diversity and inclusion in legal workplaces”) before Convocation had the opportunity to reconsider the entire project. Unfortunately, most voting benchers refused to hear what anyone might have to say on the motion and summarily voted to “table” it (that is, to shut it down without any discussion).

We have some hard work to do to get the LSO off the road to nowhere on which it embarked in 2016 with the “Inclusion Index” idea. How much of our members’ (oops; our “licensees’”) money shall have been spent on all this before we finally get the LSO off this road? We’re not sure…

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