The diversity data gap: Canadian law firms’ reluctance to gather and publish may be about to change

For diversity advocates in the legal profession, Canada’s culture of privacy can be a major hurdle. Law firms’ reluctance to ask for and disclose internal metrics can mean that even when the problem is visible — such as when you browse through the photos of any law firm website — the hard data is elusive.

That may be about to change in Canada though, with the Law Society of Ontario indicating it will be publishing an “inclusion index” of law firms this year, according to bencher Atrisha Lewis, and some of the large law firms committing to more disclosure of their numbers.

In a presentation at the Canadian Law Awards in October, Rebecca Bromwich, the national diversity & inclusion manager at Gowling WLG, delivered a keynote presentation titled “Diversity Challenge - Towards Evidence-Based Change.”

“We're challenging all firms to involve leadership directly in their [diversity and inclusion] efforts,” said Bromwich at the event. “And a first step of that direct involvement is to move forward on tracking metrics of demographic data.”

Nikki Gershbain, chief inclusion officer with McCarthy Tétrault LLP, says her firm has been gathering this data for a while and will provide it to clients, rankings and media organizations when they request it, but it will soon be publishing it on its website for the world to see.

“It was a bit of a journey for us to get to this point, partly because the numbers aren't where we want them to be,” Gershbain says. “But we recognize that as we do the work of trying to change policies and practices, that the transparency of sharing the data . . . is actually really key for a number of reasons.”

Gershbain says one of the key considerations for firms getting started is whether to gather the information internally or to outsource it. External companies are often much better able to navigate privacy and data security, but gathering the data internally can allow a law firm to analyze the numbers against other metrics, such as compensation, promotion, advancement and work allocation.

Either way, firms need to ensure their team understands and trusts the motivation in collecting the data. “The practical challenge in gathering that data is you have to do the hard work of shifting the culture before you can get the information and [communicate] why the data is so important and . . . that you're gathering it for the right reasons,” says Gershbain.

This is why many advocates are looking to law societies and law schools to gather and release this data in a more holistic way. Whereas the LSO will soon be publishing its inclusion index, both the Law Society of British Columbia and the Nova Scotia Barristers' Society say they do not currently have plans to release data naming specific firms.

Tilly Pillay, executive director of the NSBS, says that, because lawyers can choose not to answer demographic questions, “this data is not 100-per-cent representative of diversity within firms.”

For Bromwich, though, lawyers may not be as reluctant to disclose personal information about diversity as some think. Bromwich points to a statistic in a survey that her firm recently did with Canadian Lawyer where 84 per cent of respondents said they are comfortable being asked to identify themselves formally on a number of metrics if it is used to create a better, more diverse workplace.

“Historically, people have said that's not really part of Canada's culture to provide that kind of quantitative data,” says Bromwich. “But I think it's worth asking the question if that continues to be the case.”

Michael Bach, founder and CEO of Canadian Centre for Diversity and Inclusion, says what he sees holding many law firms back is simple fear.

“Our legal framework presents some interesting challenges from the perspective of collecting data. That said, there is absolutely a way to do it that is in line with all of our various laws [that] gets the law firm the information that they need. There are many law firms that are already collecting this data and, yet, some are still stuck in the dark ages.”

The CCDI has collected data for hundreds of organizations including at least 20 law firms, and Bach has noticed a reluctance among law firms specifically to even broach the subject.

“It was amazing the lengths that people [at law firms] went to to essentially just to not ask.”

For Bach, though, not asking does not mean the problems will disappear.

Survey on diversity

Gowling WLG and Canadian Lawyer surveyed lawyers in Canada on diversity in the summer of 2020. Key findings were:

• Leadership is the key driver of change, followed by partners
• 70 per cent of firms have taken some action toward diversity in the past 12 months, with the most cited being hiring new talent and formal unconscious bias training
• 84 per cent are comfortable being asked to identify themselves formally on a number of metrics if it is used to create a better, more diverse workplace
• 54 per cent of male lawyers say their firms have full gender equality whereas only 30 per cent women do