My action plan for fighting bias and being antiracist in the legal profession

“Aren’t you lucky that your parents moved to Canada? You would be sewing carpets in a sweatshop, not a lawyer.”

“I worry about cultural competence because when a Muslim father has a baby girl, his first instinct is to kill it.”

“You can’t just play the race card and concoct human rights claims for your client. If you don’t stop, we will go to the law society.”

These are some of the many things I have heard while advocating for my clients as a racialized Muslim woman. In these examples, I have seen bias come to the surface, while I am also left with a sinking feeling that bias is often at play under the surface. I have faced in the past and continue to face unconscious bias and microaggressions, as well as overt racism.

We all have biases. There is no blame for bias. Our brains are constantly exposed to an overwhelming amount of information, and to process and sort this information, our brains create mental shortcuts, which become unconscious biases, stemming from what we have been socialized to unconsciously accept as norms.

When our unconscious bias leads to differential treatment of groups, harm occurs. In the legal workplace, for instance, research demonstrates that lawyers from racialized groups are more negatively criticized and harshly judged for the same piece of legal writing as their white colleagues. This happens regardless of the identity of the assessor. Imagine how gaslighting this feels to racialized lawyers – having to work twice as hard to then get negative feedback compared to their colleagues.

The overt racism hurts, yes. But, experiencing microaggressions and unconscious biases has had a lasting impact on my mental health. It is like being bitten by a mosquito repeatedly on the same injured arm. If somebody who doesn’t usually get bitten by a mosquito is bitten once, it hurts but does not last. If somebody gets bitten by a mosquito repeatedly on the same arm, each bite hurts more and lasts longer.

What do we do about this problem?

There are individual strategies we can implement. After studying critical race feminist theory and cognitive psychology, I have a checklist for my interactions with clients and counsel to be aware of my biases; I focus on (1) being reflective of how their lived experience could lead them to experience the same situation differently than me, (2) how I could be missing points of oppression in their intersectional identities, and (3) avoiding defensiveness to guard my privilege (which are non-blameworthy but unearned advantages we all have due to social position to various degrees in different contexts).

This approach allows me to be trauma-informed and humble in my interactions so my biases do not negatively impact others. When I slip up and act on my bias, I own up to it and do not defend myself but instead take action to fix it.

How can the legal workplace be antiracist in a manner that tempers the mental health crisis in our profession?

• Flexibility. Accommodate everyone in what method of work and schedule works for them, keeping in mind that everyone has different definitions of what work-life balance, different experiences, and different life stages. My firm has embraced this flexibility – some work from home, some from the office, some hybrid, some have a reduced work week, some work different hours, etc.
• Foster equity, not just diversity and inclusion. Diversity is having a seat at the table, inclusion is being accepted at the table, and equity is removing the systemic barriers preventing one from fully participating. This means reviewing your firm’s systems, from intake to performance management to firm social events, to ensure no neutral-looking barriers impacting accessibility and fulfilment of potential for specific groups. Put your money towards removing obstacles.
• Constant learning. Differences in lived experiences mean we all have gaps in knowledge about how power and oppression operate at various intersections of identities in society. Begin with standard anti-racism and unconscious bias training for all at the firm to establish a baseline understanding of racism, the psychology around unconscious bias, human rights, and allyship. Then, it will grow into an ongoing learning project where the firm learns regularly about different types of oppression of varying identity groups. Significantly, compensate the individuals involved – from planning and recruiting speakers to the speakers themselves so the systemic barrier of unpaid, nonbillable emotional labour is not put on your equity-deserving associates only. Our firm has a few learning sessions each year about these topics as we slowly learn how to be better allies together.
• Be race-conscious. Instead of evading discussions about race to avoid feelings of discomfort, allow the firm to be open to naming racism, bias, and oppression when it manifests even in implicit form.
• Create a psychologically safe workplace for all employees. Implement standards and checklists that force those assessing performance to be reflective of bias, keep track of who is allocating what type of work to whom (to track patterns to see if unconscious bias is operating in who gets passed the “good” files), and create a culture where everyone is given the grace and space to err and be human without harsh judgment. Stand up for your colleagues when they face oppression. Model self-care, admission, showcasing the learning from your mistakes, and humility at the top so juniors feel safe to be human. Our firm’s mentorship and performance assessment systems include this.

We have all come a long way to have these conversations; let’s work together to eliminate the barriers to equity in our profession.