The Every Lawyer

Actionable guidance on EDI in the face of a growing backlash – Charlene Theodore and Nikki Gershbain

Episode Summary

"When you’re used to privilege, equality feels like oppression." -Nikki Gershbain "Feelings are not facts." -Charlene Theodore Actionable guidance on EDI from two of Canada’s top experts on EDI in the legal workplace: McCarthy-Tetrault’s current and former Chief Inclusion Officers, Charlene Theodore and Nikki Gershbain.

Episode Notes

Julia welcomes two of Canada’s top experts on EDI in the legal workplace: McCarthy-Tetrault’s current and former Chief Inclusion Officers, Charlene Theodore and Nikki Gershbain.

Before moving to McCarthy-Tetrault, Charlene Thedore worked as in-house council in the education sector and, in 2020, she was the first black person to become President of the OBA. Charlene has also worked for the UN committee on the elimination of racial discrimination and is a member and former director of the Canadian Association of Black Lawyers. 

In addition to her pioneering work on EDI at McCarthy and starting her own consultancy firm, IDEA Consulting, Nikki Gershbain is a long-time pro bono advocate and family law practitioner and has served as Executive Director of the Faculty of Law at the University of Toronto and National Director of Pro Bono Students Canada. In 2021, she received the Canadian Bar Association’s LGBTQ Hero Award for her work on trans workplace inclusion. 

This is an episode full of practical, usable, advice on achieving true equity, diversity, and inclusion, at work and everywhere else. It includes concrete examples of effective and beneficial workplace EDI policies and offers some terrific all-purpose life lessons and memorable, usable, quotes. 

Charlene, Nikki and Julia discuss everything from the business case for EDI to Elon Musk's twitter beef with Mark Cuban, the need for active leadership on human rights and why trans inclusion matters; how cultural trends and current events in our increasingly polarized political and historical realities impact us at work; that “the truth is always more complex, because none of us is either totally oppressed or completely privileged" (Nikki Gershbain), and that "no one has a monopoly on being wrong" (Charlene Theodore).

Nikki Gershbain - IDEA Consulting: Inclusion, Diversity, Equity, Accessibility (

Charlene Theodore | McCarthy Tétrault

Law & Disorder Inc. - Law & Disorder Inc. (

As always, please feel free to subscribe and write to us anytime at

Episode Transcription

Actionable guidance on EDI in the face of growing backlash –

Charlene Theodore and Nikki Gershbain

[Start of recorded material 00:00:00]

Charlene Theodore:

                          Number one, maybe you need more self-reflection on why you're willing to make investments for the benefit of your business, except when it comes to EDI.

VO:                   This is The Every Lawyer, presented by the Canadian Bar Association.

Julia Tétrault-Provencher:

                          In June of 2023 the United States Supreme Court essentially ended affirmative action in the college admissions process, and this has inevitably led to a significant and tangible backlash against equity, diversity and inclusion south of the border. 

                          Another example you may recall, closer to home now, in 2019 the Law Society of Ontario repealed its requirement for a statement of principles requiring members of the bar to explicitly [unalledge? 00:00:47] their special responsibility to respect the requirements of human rights laws in Ontario, and to honour the obligation not to discriminate.

                          But what’s going on here? Is this a reflection of an overall shift in attitude to equity, diversity and inclusion?

Julia:                 Hi, I'm Julia Tétrault-Provencher, and welcome to The Every Lawyer. 

                          Joining me today to discuss EDI in Canada in the post-pandemic era, two of our country’s and our profession’s top experts on EDI in the legal workplace: employment and labour law lawyer and McCarthy Tétrault Chief Inclusion Officer, Charlene Theodore, and Nikki Gershbain, founder and CEO of IDEA Consulting. 

                          Nikki was previously in the same job as Charlene. They know each other well, and so we feel, should you. 

Charlene:          I had a podcast when I was like a president.

Julia:                 Oh, look at you, OK. 

Nikki Gershbain:

                          I was a guest on that podcast. 

Charlene:          Yes.

Nikki:               Charlene and I have also done a podcast together. 

Charlene:          Together, yes, so we’re good. 

Nikki:               We like each other. 

Charlene:          Yes, yes, absolutely. 

Julia:                 In the Canadian legal profession, we usually say EDI, sometimes DEI, but no one is as cool as Nikki Gershbain, who added accessibility to the acronym, an excellent idea. In addition to her pioneering work on EDI at McCarthy and starting her own consultancy firm, she is a longtime pro bono advocate and family law practitioner, and in 2021 she received the Canadian Bar Association’s LGBTQ Hero Award for her work on trans workplace inclusion. 

Julia:                 Before moving to McCarthy Tétrault, Charlene Theodore worked as inhouse counsel in the education sector, and in 2020 she was the first Black person to become president of the Ontario Bar Association. Charlene has also worked for the UN Committee on the Elimination of Racial Discrimination and is a member and former director of the Canadian Association of Black Lawyers. 

Julia:                 As always, please feel free to subscribe and write to us any time at So, here’s my conversation with Charlene and Nikki. I hope you enjoy it as much as I enjoyed recording it. 

Julia:                 So, thank you very much for being here, and let’s jump right into the subject. We are going to explore the EDI backlash, but before we get there, let’s start with what EDI has achieved. How far have we come today?

Charlene:          Well, I think it’s important to note when we’re talking about how far we’ve come, we’re talking about it in the context of a profession that has, either by legislation or by convention, excluded – has a history of excluding people from the ability to practice and participate in the profession in any way, based on their identity, right. 

                          And so this is not ancient history. We know when the profession started, but we also know when the first black woman in Canada, Violet King, started practicing. We can know and look up when the first Indigenous lawyers were admitted to the bar. We can look up the first queer lawyers, or out queer lawyers. 

                          And so, when we’re talking about what we’ve accomplished – and we’ll kind of get further into this, into the discussion. It’s under the knowledge and recognition that we are at the closest place to the bare minimum that we’ve ever been. Just, you are allowed to go to law school, there’s nothing restricting you from going to law school aside from socioeconomic circumstance, and in theory at least, you are allowed to practice the trade of law, anywhere you can get kind of past the interview for the intellectual work that comes with the job. 

                          And so, given that, what we’ve seen in the history of this profession is that diversity has never come all at once; it comes in waves. I would say, the first kind of large wave was women in the profession. I remember before I even went to law school, hearing about the Justicia Project, and kind of a profession-wide look at the barriers that were created to prevent women from full participation in the sector. 

                          Then, you know, I don’t know if we started talking about queer identity first, or race, but in terms of talking about queer identity, I think it was more of a broader movement. 

                          When it came to race, the profession from the outside, looking in, seemed to be more comfortable with race in an undefined way. We could talk about race, but nobody was talking about anti-Black racism on a profession-wide kind of solution-based movement until four years ago. 

                          And so, we’ve made a lot of strides that, quite frankly, I have benefitted from, but when you look at that in context, this is still a very new approach to looking at our profession. And when I say new approach, we’re not talking about people that can honestly be considered the exception to the rule, right, like the Violet Kings of the world. We’re talking about a profession-wide understanding response and profession-wide solutions. And so, that’s the kind of change re going forward, and that as a phenomenon is still quite new.

Julia:                 And I find very interesting that you say we’re close now to reach the bare minimum. I think it’s the first time that someone puts it like that, and I find it – I think it is striking. 

Nikki:               I agree with everything Charlene said. I think the bar is still pretty low. We are so very new, or embryonic on EDI in law and you know, while we’ve made some strides, there’s a really long way to go. 

                          I do think, like other workplaces, we’ve made some progress on some of the really big stuff. So, the overt sexual harassment, really blatant racism, queer people having to be really deep in the closet, all that kind of madmen era type stuff, to the extent that workplace social norms have changed. We definitely have EDI to thank for that.

                          And of course, it’s not always been called EDI. This is a movement that is decades old. It’s really just about workplace movements to advance human rights.

                          So I think that when we ask at this point how far we’ve come, it’s now really more about the structural issues, the more subtle, insidious barriers that are holding people back; the unintentional bias that impacts access to opportunity, the everyday microaggressions. The pressure to assimilate and fit into dominant norms in the workplace, like around gender or race or class. 

                          You can be a woman in the workforce, but you know, don’t talk about your kids. Or you can be Black, but don’t be too Black, or queer, but don’t be too queer because it makes people uncomfortable. So, I think that’s the kind of stuff that we haven't really done as well on.

                          I do think that law firms right now are at least alive to the importance of fostering diversity. Charlene talked about how far we’ve come on queer inclusion. Well, you know, when I was a law student, which was now 25 years ago, I remember that my fellow openly queer classmates and I would debate whether or not we should be out on our resume. Should we have in resumes or out resumes? 

                          That is a very big change from today’s environment, where firms are actually actively competing to recruit underrepresented students. So they are participating in the law firm hop for queer and trans students. They're going to the CABL Conference to meet Black students there, talking to candidates about mental health and work-life balance because they're trying to appeal to women and parents.

                          So, I think firms definitely understand the value of creating more inclusive environments, but it’s being alive to the numbers and understanding inclusion, are very different things. 

                          And so, what we really need to make progress on is how can we focus on making sure that young lawyers who are members of equity-deserving groups have what they need to build a sustainable legal practice. How do we make sure that they're getting access to high value files, that they're building relationships with powerful mentors and sponsors and that they have someone in their corner to help navigate the politics?

                          Because that’s really what it comes down to if we’re talking about setting people up for success within private law firms in particular, and to a certain extent, other legal workplaces. 

Charlene:          I think it’s also important to say that, you know, Nikki and I come from – you know, I'm right now Chief Inclusion Officer of a large national firm. I come from a fairly traditional inhouse policy of an inhouse legal employment, legal community, as Nikki comes from, I think, a fairly traditional family practice. And so we see the change, but I think it’s important to acknowledge that. 

                          And when we say it’s a large-scale legal movement, it doesn’t necessarily look the same for everyone in every place across the country. You know, we’re both big city lawyers, and yes, I think it’s important to note that we are talking about this progress, when I completely agree with, in the context of a tension right now – an ongoing tension for the last few years within the legal community about where we go with diversity. 

                          So, when I said earlier we’re at the bare minimum, I say that based on my vision not just for the profession, but for corporate Canada and workplaces in general, versus, let me say, McCarthy is [unintelligible 00:11:52] to work where you don’t have to cover up important parts of yourself to succeed.

                          And so, before we can get to that we’ve got to level the playing field for everybody, right. And so, all of this progress has got us to the starting line of something really, really big and really transformative, that I hope we’ll see within the next decade.

Julia:                 Yes, and I guess also something that, maybe it’s like the next step now, because I feel like, from what I understand and what you're saying, it’s like, OK, so now we have it, we have the policies, but as you say, I feel it’s a bit maybe of trainings, of sensitization of the people, or changing their mindset? So it’s like, we’re there and now, how do we get to the next step of the EDI, and how do we implement it properly. 

Nikki:               Charlene was talking about levelling the playing field, and I agree. And you know, to a certain extent, you know, we’re in a bit of a Toronto bubble, but even where there’s a kind of a general consensus that we want to move towards diversity and inclusion in law firms.

                          But I also – and I know Charlene, that you’ll appreciate this – I talk to partners and law firm leaders all the time, who still don’t understand how hard it is for some groups. They just don’t accept that the playing field is still not level.

Charlene:          Exactly, yes.

Nikki:               And I think that failure of imagination, I think that’s really our biggest problem.

Charlene:          Exactly.

Julia:                 It’s true, and I think that’s a bit also because we’ve been talking about the backlashes, or maybe it isn’t exactly a backlash, but sometimes we will hear, “Oh, our EDI, it’s fine now, we’re there. What do we want more? We have a policy.” Or even people will say, “Now we’re there, it’s preference treatment for some people.” 

                          And also, I think sometimes there is indeed some EDI backlash where people – or the other also view us sometimes, what we’ll hear is that our EDI, it’s a buzzword, so nothing is really done about it. I'd like to hear your views on that; why do you think some people – not don’t want EDI, but are maybe more skeptical in front of it?

Nikki:               I mean, there is definitely a backlash in the US, in the United States. I don’t think it is as extreme at this point, at least not yet here in Canada. I think it’s important to go back. For listeners who might not know, to go back to last summer, because all of this really started gaining traction after the US Supreme Court released a decision last summer which basically found that race-conscious college admission programs discriminate against white people. The kind of reverse discrimination of affirmative action programs argument.

                          And that ruling then led some states to actually actively bar their colleges from funding EDI programs in college – a lot of this is focused on college campuses right now. And so, all these American colleges are in the process of dismantling their EDI programs. 

                          And then it eventually migrated to law firms in the US. So the same group that went off after affirmative active, went after diversity fellowships at law firms, so what we call pipeline programs. 

                          And then, given this earlier Supreme Court decision, those law firms basically had no choice to either drop these fellowships or broaden the criteria, which is essentially what they did. So now, instead of looking for students who are members of certain racial groups or other equity-deserving communities, they're starting to look for students who can bring diverse perspectives or had been resilient or overcome barriers. So still clearly focused on the pipeline, but just a lot more subtle and euphemistic. 

                          I also think the US is really where the culture war stuff and the anti-DEI stuff has really gone totally bananas. We had Elon Musk tweeting that DEI must die. [Gasps] He blamed an airline door malfunction on diverse hiring practices at Boeing. We could laugh at just how absurd all of this is. 

Julia:                 This is insane.

Nikki:               Right, if it weren't so –

Julia:                 I didn’t know. 

Nikki:               Yes, it’s absolutely – it’s funny on the one hand, but actually, it’s really insidious and really scary, because what it’s doing is playing into very old and dangerous tropes about women and people of colour not being as qualified or as smart or as capable of white men. So, it’s this idea that EDI lowers our standards, that it’s not based on merit, it discriminates against white men or white people more broadly. 

                          And so, I guess the question for us is how much is this rhetoric gaining traction in workplaces? There was a recent survey where 93% of CEOs said that their EDI budgets were going to be staying the same, so that’s great. You know, there’s a backlash, but obviously, smart leaders know that EDI is good for business.

                          I don’t think that we’re immune here in Canada from the US culture wars. You know, we’ve seen, for example recently, all of the attacks on so-called gender ideology, on trans and nonbinary youth in school systems. You know, we're definitely taking a page out of the far-right mega-Republican populist book when it comes to what issues are we using and who are we sacrificing in order to score political points?

                          But I do also think that EDI is more resilient in Canada, and I think that’s for a few reasons. Obviously, we’re not a perfect country and there’s a lot of ugliness and bigotry, but I do believe that most Canadians care about diversity. We also have a greater commitment legally to substantive equality as opposed to formal equality. I think we understand equity a bit more.

                          And then, of course, we have protections under our human rights codes for programs that are designed to ameliorate disadvantage. So, the program that Charlene runs at McCarthy’s that attracts Black and Indigenous law students, that’s not a program that’s going to be attacked in Canada in the same way that we’ve seen that now in the US. 

                          And I mean, I’ll stop there. I've got more to say about kind of whether the backlash has hit the legal profession, but I'm curious to hear what Charlene thinks because she’s much closer to it, I think, than I am at this point.

Charlene:          Yes, you know, one thing I want to kind of just table is that this backlash isn’t restricted to the legal profession and it doesn’t grow in a vacuum. And anybody who has been doing this work, either as a lawyer or in any other sector, has seen this pattern before; it is very cyclical.

                          And so, it looks different this time and it may feel a little scarier or precarious at this time, but this is what progress looks like. We’ve seen during the pandemic, after the murder of George Floyd and [lies? 00:19:10] and anti-Asian hate crimes and real reckoning across the country about our relationship with Indigenous peoples, what I saw during that time is the fastest period of acceleration, collective learning and real thought leadership and innovation across sectors.

                          And whether it was the fastest or the slowest, every advance comes with – I’d want to be able to call it backlash, right. It’s advance, then it’s retreat and sometimes that retreat is backwards, sometimes it’s a little sideways to the left, sometimes it’s sideways to the right. One point where I have a bit of a different view than my colleague Nikki, is categorizing this as mega right-wing or aligning it with any kind of political ideology.

                          I'm a first generation Canadian, I'm a Black woman, cis gender from an equity-seeking group, and I know within equity seeking communities that benefit from advancements, queer identity and queer inclusion has always been an issue, and we’re always kind of behind where we should be within that fight for queer inclusion, and fight against queer violence.

                          And so, when it comes to the queer community, and I also think when it comes to gender at large, nobody has a monopoly on being wrong where that’s concerned,  no one at all. And I think, you know, the way I look at it as someone who now works full-time as a strategist in this space is, I don’t make any assumptions about who holds what would normally be considered we’re labelled right-wing kind of views.

                          We saw the same thing maybe 40 years ago. When I was growing up people on all sides of the political spectrum didn’t want me in their classrooms, didn’t want me in their stores, didn’t want me playing with their children. And so, I look at this issue like that. 

                          But Nikki also said something that I think is an important point. In Canada we have a legal framework that acknowledges the fact of what I said in the answer to the first question. When you look at that timeline of any profession, we weren’t all let in at once and didn’t all have the same advantages. 

                          And so, there is fundamentally in showing within our legal structure, an acknowledgement that we are allowed to look at that, take note of it and create systemic programs that have as the definition of fairness, rectifying our past exclusions. 

                          And so, when it comes to discrimination, I don’t know that the less is the bar that we want to measure ourselves by, but I think we're doing better. And if we’re talking about backlash, which is kind of the word of the day, I think at its core it’s out of a growing concern. 

                          And we see this come up again and again and again during different waves of progress with regards to inclusion in our profession. There is this concern that whereas it’s very, very [unintelligible 00:22:30] we had, every time these things happen, that we move away from meritocracy, which is a really loaded word, where that hard work is no longer accounted for or held in the same regard. 

                          There’s a sacrifice; we have to sacrifice one for the other, and that is sometimes stated explicitly, and a lot of times it’s just implicit in the development of hiring, retention policies or the opposition to inclusive hiring and retention policies. 

                          And what’s at the core of that is that it assumes that people from equity deserving or equity seeking groups aren’t as qualified, as talented or as worthy. 

                          And what’s so insidious about it is that it’s so pernicious that people from equity-seeking groups – so people of colour, women, Indigenous people, queer people, disabled people – we are also taught to buy into that argument in some way by not accepting what is necessary for our success, whether it’s a mentorship program or a sponsorship program, because we are so concerned that we will label ourselves unworthy, right.

                          But when you think about it, inclusion efforts don’t just benefit. At a minimum, they are necessary to the change that we want to see in the profession by remedying those past inequities. But they benefit everybody, right.

                          So McCarthy Tétrault, last year we became the first Canadian law firm to have all of our offices – all of our Canadian offices’ accessibility certified by the Rick Hansen Foundation. And we did that not just because accessibility is a priority, but we knew that we would find hidden gems in doing this project, right. 

                          So, I’ll take the most basic example, so the wheelchair route, it actually benefits parents, elderly people and people who are temporarily disabled. The disability community is the only one that you can come in and out of at different points in your life. As someone who broke a toe and an ankle during the pandemic,  I can tell you that this is true, right.

                          And so, it really is true that when it comes to DEI, whether we’re talking about disability or any other kind of inclusion, there’s a larger cohort that benefits. And so there are rewards you will reap that you may not even know until you put these things in place.

                          Another context, the other thing that we’ve done at McCarthy’s is, we’ve expanded the definition of family within our bereavement policies for LGBTQ2S+ folks who’ve been ostracized from their biological families. And so, when we say “family” now, whether it comes to bereavement or family leave, that now means chosen family for the queer community because we know that the reality of that is. And that’s just one thing to come out of a year’s long trans inclusion initiative. 

                          And so, if we want to get to the bottom of this, you know, I always have to say, feelings aren’t facts,  right, the laws on the books that prevented women from entering workplaces across the country including the legal profession, that prevented Black people from entering workplaces including the legal profession, that prevented Indigenous people from participating in all professions and more, that’s a fact, it just happened. 

                          A lot of our conversations and the resistance to EDI initiatives centre on feelings or gut instincts. And so, I think leaders need to be really honest about why they are uncomfortable with this newest iteration of our inclusion efforts. Is it due to a fear of losing power? And if so, how can we – I was going to say reframe, but how can we communicate that that’s not true; this is about sharing power. 

                          And it’s not just about sharing power for my personal benefit and your personal benefit, Nikki’s personal benefits or all of our diverse students’ personal benefits; it is about sharing power for the benefit of the business. 

                          I think one of the greatest things that people can do now in this time of “backlash,” is to do that self-reflection, right. Or if you are in leadership, leadership coaching, talent acquisition, HR, PR in any legal department or inhouse legal team, to make sure that you facilitate the Chatham House rules, the confidential self-reflection conversations. Because we only have in this profession, one hiring pool. 

                          I meet great video game developers, accountants, researchers, architects, artists, all the time. I can't hire them to help our clients,  as much as I'd love to. And so, I think it is even more important that we understand what the nature of the law student class is looking like and get about the business of creating better workplaces and workplaces that will welcome the future legal leaders in the profession that are women, that are nonbinary, that are queer, that may be neurodiverse. And so, our large and great storied firms across this country, don’t get reduced to a Wikipedia entry, remember back when.

                          So, those are my very long  thoughts on that question, and like Nikki, I have so much more to say. But we’re about to move this podcast session into a podcast series. .

Nikki:                We could do that. I do think that first of all, I completely agree about the comment about law students, and I do think that the biggest thing that we have on our side are the demographics. EDI continues to be top of mind for law students, and there are a lot of law students out there who are actively looking for firms with solid EDI programs. That’s how they're making their decision; they want to work for firms that share their values.

                          And I think that the firms know that, and I think that the firms understand that in order to maintain their competitiveness when it comes to recruiting top talent as well as clients, they need to be focused on developing a solid EDI program. So, that’s the other that I think we have in our favour.

                          Just going back to something else that Charlene said: it’s not that I want to suggest that people haven't always held these views, because obviously, they have, or to connect it only to politics. But I do think that we have seen that this move to the far right, you know, since 2016 at least, in the US. And you know, the erosion of political and social norms that has really gone along with that as a result of Trump-style politics that did open the door, I think, to a certain kind of violence and bigotry and hatefulness that, even if people held those views before, they weren't as acceptable to articulate.

                          I think we’re susceptible to that discourse kind of penetrating our politics and our conversations. So again, if we go back to this issue of trans and nonbinary youth, you know, this concept of parental rights, for example, that was a non-issue in this country, that was not a phrase that we ever spoke about. It’s certainly not a right that is enshrined or protected in our charter. But we borrowed that language from the United States, and we imported it into our conversations here so that we could have conversations about trans and nonbinary youth that would appeal to average Canadians.

                          Because most Canadians don’t know trans people or nonbinary people and so it’s easy for them to say, “Oh, parental rights, that makes a lot of sense. Yes, I should have some rights to know something about my kids.” 

                          But you know, think about all of the gay people that you know today who were exploring their gender identity, their sexual orientation when they were in high school. The idea that we – and it’s just a slippery slope to going there, by the way, in terms of sexual orientation and not just gender identity. But the idea of calling parents, you know, going back to homes that may not be safe for those kids, and sharing – you know, youth have the right to privacy more so than parents have the right to have information about the exploration that their kids are doing in school. I mean, school is a place where kids are supposed to exploring.

                          So, we talked about parental rights, but what about the rights of trans and nonbinary youth to privacy, what about their right to safety, their right to go to school in an environment that’s safe, and what about the rights of parents who support their trans and nonbinary kids and want to make sure that their kids are going to school and that they're safe? 

                          I don’t want to suggest that we should be importing politics into the workplace, but it’s not a far – you know, when we have the conversations about trans youth in our culture, it impacts and influences the conversations we have about trans inclusion for trans adults in our workplaces, and I think we need to be very aware of that.

                          So if I'm a law firm leader, for example, and my EDI person says to me, “We should really think about having a policy around pronouns, we should be thinking about offering gender-affirming health benefits, we should make sure that we have all-gender washrooms,” and I look and I see what’s happening in Alberta or Saskatchewan or whatever, and I see that these issues are becoming “debates,” and that they're becoming controversial, am I going to pursue trans inclusion in my workplace, or am I going to say, “You know, why don’t we press ‘pause’ on that and move to something that’s not as controversial?”

                          So, I don’t want to belabour the point, but I do think that our workplaces are so influenced by the conversations that are happening in the popular culture.

                          In terms of the legal profession and whether or not the backlash has hit the legal profession, you know – so, first of all, here in Ontario we did at one point elect an entire venture slate, because they promised to repeal the statement of principles, which they ultimately did, right, so there’s that.

                          Now, on the other hand, we then rejected that group in favour of a slate that is focused on governance and civility and diversity. So, have we seen a retreat away from inclusion by firms? I actually think a lot of firms are making major investments right now in EDI, and that they continue to do that.

                          So, for example, when I was Chief Inclusion Officer at McCarthy’s, there were only a few other EDI roles in the profession, and now there are many. So all of this is to say yes, there is a backlash, yes, it is happening here in Canada. I don’t think the profession is immune from it, but so far, at least, I don’t think it’s dominating or derailing our conversations and our programs. 

Julia:                 Thank you. I love to hear that. And then I will actually jump into that question to ask you because you’ve been talking. I see that you’ve all been talking a little bit, referring to your work and what you do with the law firms, and I would love to dig deeper into that, and just to know a bit what actually law firms – what legal employers, what they ask you when they want you to help them.

                          So you know, what are their requests? Because Charlene, you mentioned – I think it’s very interesting – this point. Take a step back and reflect why you have some discomfort with some EDI policies. So, is it something that you do? Do you do workshops on trying to deconstruct some views, some biases? 

                          So maybe it’s two questions in one, but first maybe, what they are asking you and they are requesting your help, and also, what kind of things you do to help implement those EDI policies. And I know that also, I will say – because I said it in the intro, but Nikki, if you're comfortable eventually to talk to us a bit about why you added the accessibility? Because I know it wasn’t in the script, but I'm curious, but that will be for later, just so you know I will ask you that. 

Charlene:          I would love to answer that question, but I think we should belabour the point on the trans inclusion issues. I do have something to add. 

Julia:                 Please go.

Charlene:          Another reason why understanding and supporting trans inclusion is so important is about parents. Just from my personal network, so many kids came out as trans during the pandemic, where they didn’t have access to supportive communities, there was kind of nowhere to hide. And you were locked down with your family, and for better or for worse, a lot of kids came out. And so, a lot of parents who are lawyers came back to work looking for understanding and research and resources and supports.

                          And when we enact the policies that are harmful to trans people, the negative effects are not limited to trans people; they affect their communities, they affect their families, and quite frankly, as with every restrictive inclusion policy, they affect our economy. 

                          When we were in the pandemic, I can site a million and one studies, but I think it’s common knowledge that the percentages of women in the workplace took, I think, a pretty impactful drop. Women really had to step back.

                          And if you look at organizations like the Prosperity Project, those things are measured in numbers, right; numbers not just for your individual, you know, multi-million multi-billion [unintelligible 00:37:02] corporation, but numbers in terms of all of our economy and economic ecosystem. 

                          I bring that up as an example because if we are going down the path of excluding trans people from the workforce – first of all law firms, we are businesses that generate profit on the strength of our ideas. Excluding people with different perspectives from the table is shooting yourself in the foot in so many ways.

                          And when we're looking at it nationwide, there is a nationwide problem across the trans community. Statistics Canada – actually, Canada was one of the first, or the first country to start tracking census of economic issues related to trans inclusion. If you think of the power of inclusiveness just to our collective workforce and economic power, it’s not the most heartstring-pulling reason. But I do work in terms of transforming businesses, making sure businesses are profitable and inclusive, so that is always something at the forefront of my mind.

                          And I'm very, very proud to say that again, after a years-long trans inclusion initiative, McCarthy’s has launched a gender affirmation benefit plan. And so, what a lot of people don’t know – again, feelings aren’t facts – there is a world organization, an organization that has established a global kind of agreed upon standard of care for people that are going through the gender affirmation process. That includes physical surgeries and mental health supports. 

                          Across the country, each province has a different level of public healthcare – we love it – but for trans people there is no consistency across provinces and territories as to what’s covered. 

                          So what we did as a firm is, we built a benefit package to fill in the gap. And so now we are making sure again that we’re levelling the playing field, making sure that everybody has access to healthcare in a meaningful way. Because if the benefits are the same for me and my colleague that’s going through a gender affirmation process, I have more access to healthcare than my colleague does, right. And we’ve eliminated that by putting in the gender affirmation benefit package, and it’s a family benefit.

Julia:                 This is great. I mean, this is really concrete, and I feel like you’ve been giving this a lot of really concrete steps that have been taken by McCarthy. But what I had in mind also when you were talking is, how do you measure? So, this is all really good concrete steps for EDI, and then, how do we measure the success, or what are the measurements to say, you know, to then say, “You know, McCarthy did that; look how good it was, look how it helped the business,” as you say, for instance, but also the people. And so, how then do you do this evaluation of progress, let’s say?

Charlene:          It’s funny, I just got back, and I can speak to – one of the great things about my job is, I don’t just get to help the firm, but I do provide strategic advice to the firm’s clients. And so, there are so many people doing amazing things.

                          And the CFA just had its first diversity conference, a global diversity conference in Boston, called Thrive. They have a DEI code that they're implementing across the international sector. And I went there to talk about measuring impact. 

                          We are very fortunate to be at a point in time in the business community where we all kind of see – and just maybe not everyone has a [sea of? 00:40:40] reason or maybe not everyone has access to the resources to say, “This is how many women are in our firm, this is how many women of colour are in our firms, how many queer, disabled, Indigenous people in our firm.” It’s internally motivated by organizations and it’s externally driven by clients who want to know what organizations are doing about diversity and how diverse their teams are. 

                          So, we have that in place at the firm, but there are so many more other ways to measure impact at every stage of your journey. Of course, you need to consult with legal counsel, but there are organizations that do measure the diversity of their hiring quotes, so the people that have not applied yet, that have not gone into the firm, but are applying for a position. 

                          That can tell you, “Hey, we have not had a single application from an Indigenous person, and we operate in an area where there is a high, high, very dense population of Indigenous people. Let’s go about the business of fixing that; let’s connect with hiring services and pipeline programs, let’s do outreaches to the community, let’s have an Indigenous job fair for our marketing team, right, so you can measure that.”

                          Qualitative data is also really powerful, so asking people questions. For example, in addition to saying, maybe self-identifying as a Black, straight, cis gender woman of a certain age, I can also be answering the question, like, if I needed an accommodation, I would know where to go, right, to show how well we’re doing on making sure that people understand we’re here to accommodate them, right.

                          I feel like my articling principle or my manager or my director or my practice group lead supports and understands my career aspirations. If I wanted to go to a culturally specific leadership learning retreat, I would know how to apply for it. And so, you get a mix of qualitative and quantitative.

                          There is also information that everybody has, every HR team has, right. What is the life of your people at the firm? So, if ten men and ten women start on the same day, doing the same job, how many of them are taking mat leave or parental leave or paternal leave? When that happens by gender, who’s coming back? Do you notice a drop-off in people leaving the firm or your inhouse legal team one year after they come back from parental leave two years after they come back from parental – what does that mean?

                          So, this is information that people already have at the ready. I like to call them cliffs; you know, you will often see them: at certain points in their life, in their career you’ll see a drop-off, and that’s kind of an indicator that you need to do something or provide some supports or get more feedback at that time. 

                          So, there’s lots and lots and lots of ways beyond counting the numbers, which is also very important, that you can measure impact. You can hold yourself accountable to the diversity inclusion roles that you maybe promised on Twitter in 2020 or promised to your own people. And there's lots of ways that you can really focus your efforts in a really kind of lean into the ROI of your efforts towards inclusion by looking at the data that you have, or could have, at hand beyond strictly self-identification and demographic data.

Julia:                 Thank you. Nikki, you?

Nikki:               So, you asked what law firms want us to help them achieve and how we measure success. And you know, I think a lot of law firms talk about diversity and inclusion, but if you really want to get a sense of how inclusive a firm is, numbers aren’t the only thing. But you do want to look at how diverse a firm is at the management committee level, at the [unintelligible 00:44:58] levels because that’s really giving you a sense of whether or not people have access to the building blocks of success as they’ve gone along the path to partnership, let’s say. 

                          So, for example, the problem is, we don’t have a lot of data in Canada. I don’t think we’ve recorded data in Ontario, for example, since 2019 - we just don’t know a lot. 

                          But from what we do know, we do know that women represent half of all lawyers in the country. And then I would say probably between 20 to 30% of partners at law firms. And again, these are rough estimates – that’s a whole other story, but we definitely need to do a better job of gathering and reporting data on our [unintelligible 00:45:41]. 

                          And so, I believe that law firms generally want more diversity. I think the real question is whether they understand what that really involves, or if they're prepared to do what it takes to get there. So, I think that a lot of firms are really happy to lean into diversity initiatives that are about changing people, so unconscious bias training or teaching people how to do business development, because apparently women, for example, don’t know how to do that.

                          And I think we’re happy to lean into diversity initiatives that are about acknowledging difference. So, creating employee resource groups or posting social events, recognizing days of significance. But they're really less keen on looking at the structural stuff; so how can we do better on recruitment, on work allocation, on distributing high-value work and career enhancing opportunities fairly, on performance review, on parental leave. How do we make sure that parental leave isn’t just a policy that we have on the books, but it’s something that people of all genders feel that they can actually benefit from? 

                          And I think that’s the stuff that really goes to whether or not a young lawyer can be successful and build a book of business. And that’s what you need in order to be able to make partner at these firms. 

                          A last thing I’ll say, I guess, in terms of what constitutes success is that I think the other thing we really need to start doing is to start grappling with and getting a handle on work volume. Because you know, you talked about the word “accessibility.” Well, part of the reason why we include the word “accessibility” when we’re talking about inclusion, diversity and equity, is because we need to make sure that workplaces work for everybody who we have coming through the door, and that includes people who have mental health issues.

                          And we know from reports in the profession that lawyers experience very high rates of depression and anxiety, suicidality, substance abuse and so on. And a lot of this can be traced back to work volume and the experience of lawyers that it’s not possible for them to actually fully disconnect. 

                          And so, study after study suggests that the current law firm model, including billable targets – and I'm not naïve, I'm not naïve that EDI is going to be able to get rid of the billable hour – but the current model just doesn’t work for most people. It doesn’t work for women, it doesn’t work for parents. But of course I’m not even just talking about parents or people with caregiving obligations; it doesn’t work for people of all genders who care about their mental health.

                          And you have different values, right, and that goes back to the demographic piece. You know, Gen Z and Gen Alpha coming up behind them. Younger generations are just not interested in the status quo that we have created when it comes to work. Law firms were built by and for white men who had stay-at-home wives and who could invest everything in their careers.

                          And that reality has changed, but the structure of the firms hasn’t changed. And at the end of the day, it doesn’t matter how many Pride days you celebrate or Black History Month events that you host. Until firms start to make these kinds of structural changes, which involves – you know, Murray Gottheil just had a great short article on LinkedIn the other day. He's a retired lawyer and he writes a lot about his experience as a partner at a law firm and a lot about, you know, if he knew then what he knows now, how he would have done things differently. 

                          And one of the things that he talked about is the fact that at the end of the day, firms need to hire more lawyers. If we want to get a handle on work volume, then there needs to be more lawyers doing the work, and that’s going to impact obviously profits per partner, and that’s not a direction that most firms want to go in.

                          But the reality is in that case, firms, I do think, need to accept that until they do get a bit more of a handle, if not the work volume stuff, at least all those other structural pieces, partnerships are going to be disproportionately – continue to be disproportionately white and male and not diverse. And those are conversations that I think we really need to start having in the profession. 

Julia:                 Thank you the both of you. What I feel a little bit also is that it requires money too. I mean, we need to budgetize in your budget – annual budget or whatever, or for the next five years – you need to willingly put money into EDI, I feel like, from what I hear, also from what you say. 

                          So, I think also, when you stress, Charlene, that it can have a good impact on businesses, maybe it’s probably an important argument also that you want to share, on top of, of course, making sure that your employees are in a great health shape and also great mental health shape, and that everybody feels comfortable. And also, because you are just at heart other human beings.

                          If we go into the very mercantile arguments of it’s also good for the economy and so you need to invest in it, I guess that’s probably also something you will look into when you are working with the firms. But I said I'm not an EDI expert, but I guess that’s an argument that probably is raised. So, yes, yes?

Charlene:          So, there’s so much to say in response to that. 


Charlene:          Number one, people seem to be able to understand making investments in business, in their firm, that they hope will be profitable. So let’s say I have a mid-size law firm and there’s an opportunity to expand to another market. Let’s say it’s, you know, Northeastern US, Newark, Boston, etcetera. 

                          What you would do is you would either speak to experts in your firm, externally, run the numbers, run the impact from the investments. You plan it out very specifically, like a strategy, right, and you’d want to know what the benefits are, what the cost is going to be and what the risk is. 

                          People don’t want to do that, and I exclude my firm political people. People don’t seem to understand that enterprise-wide change management and inclusion and retention and issues that are based on EDI principles, it’s the same thing. And I don’t know that people will ever really get that if they keep running EDI or DEI by committees of people working off the side of their desks.

                          One of the things that Nikki didn’t mention is that we were the first firm to create the role of Chief Inclusion Officer, and the chief actually means chief – it’s not a term of art. As Nikki did before me, I work with our CEO, and it is an enterprise-wide business strategy, and basically my job is to look at the way we run our business and to make sure that we’re doing it in an inclusive and intersectional way as possible. 

                          The other thing I will say is – and so, everybody makes decisions in law firms every day to invest money in resources, and that investment is relative to the importance, nature and ROI of the project. Same thing here.

                          While I was president of the Ontario Bar Association, not only was I the first Black president, I was the first, and God willing, I will be the last pandemic president. But not only were we having really complex conversations on race throughout the profession; we were talking conversations about workplaces. 

                          And so, I was not just talking to big firms with big budgets and big dollars about this stuff. I was talking to small practitioners; I was talking to small firms, and you can invest money, or you can invest resources. There is nothing preventing a collective of firms from a local bar association, let’s say up north, Sudbury, in a smaller market, from getting together and co-running a BIPOC Black Indigenous women’s career fair, networking. There is nothing wrong with connecting and doing programs with our local Canadian Bar Association chapter; that’s what we do.

                          And so, what I find a lot of people tend to do when we’re having conversations like this is, they’ll say, Julia, what you said. “You know, it sounds like you’ve got to invest a lot of money.” 

                          Finish the thought, show your work. Is that actually true? Ask a question. Don’t just have that conversation with yourself, or God forbid, the young woman or racialized associate that’s asking you to put some changes in in the workplace and stop the conversation there. Do you actually know how much money it costs? Do you actually what the time and resource investment is? Do you know that there are people that can assist you in looking at your existing programs and initiatives, and making them more inclusive?

                          So, not everything has to be a net new. And so, I guess the two-part response to that question is, number one, maybe you need more self-reflection on why you're willing to make investments for the benefit of your business, except when it comes to EDI. And if the [unintelligible 00:55:19] you don’t have the resources, that doesn’t need to hinder you from doing a lot from where you are, either in your personal capacity or within the capacity of your firm and where you are geographically, to do your part in improving our profession.

Julia:                 I loved it. Thank you so much. Nikki, I don’t know if you wanted to add anything.

Nikki:               Yes, no, just say on Charlene’s last point, I mean, I completely agree that this work shouldn’t be done off the side of our desk. I mean, this needs to be treated as a business priority, just like any other business priority. And you know, we don’t question investments into increasing market share and revenue, so why do we question investments in EDI? So I 1000% agree. 

Julia:                 Is any of the criticism fair regarding the backlash that we mentioned? 

Nikki:               In terms of whether there are any aspects of EDI that could be improved or where the criticism is maybe a little bit fair. I mean, first of all, obviously, yes. EDI is a movement, it’s a framework. You know, no one way of viewing the world is going to be perfect. We’re always learning, we are always growing and evolving our thinking about these things. And I do think that there are a few ways that we could do a little bit better. 

                          So, the first thing I’ll say is that EDI concepts and principles require a lot of nuance, and not all practitioners or not all people that support EDI are equipped to always bring that to the table. Which is OK and it’s understandable because we’re always all of us always learning. We can't know everything about everything, it’s not possible. 

                          But I do think that EDI is sometimes guilty of falling back on overly rigid understandings of human difference, and that the truth is always more complex. Because none of us is either totally oppressed or completely privileged, an many of us might have a lot of privilege but we all have things that we’ve had to overcome or pieces of our identity that bring shame or stigma in the culture, and so, I think it’s really important to remember that.

                          I’ve been thinking a lot lately about the issue of anti-Semitism. We’ve been talking a lot about this recently, and I do think that there is truth to the concern that our EDI frameworks have not historically been broad enough to be inclusive of anti-Semitism.

                          But then I would say, I don’t necessarily think the problem is EDI because I do think that EDI, the frameworks that we use – the research the concepts, the ideas – the frameworks are nuanced enough to appreciate for example, the intersectionality of the white Jewish experience in Canada. And I'm a member of the Jewish community, so in part it’s my experience. 

                          When I was at McCarthy’s we started a committee as part of our race action group to engage the firm in conversations about anti-Semitism and white supremacy. So clearly, the EDI lens can be widened – that’s not really the issue.

                          I think the issue is, how do we avoid the kinds of very simple “us versus them” narratives that don’t allow us in this particular moment to make sure that both our Jewish and Palestinian and Muslim employees are feeling seen and supported. And that really don’t help us to understand the ways in which both groups are bringing a lot of trauma right now into the workplace; a lot of historical trauma, a lot of current trauma. And we really need to meet that moment with nuance and compassion. And I think it’s possible, but I also think it’s very challenging. 

                          And then the second thing I think we can do better – and this is connected probably as part of our EDI work – is on really making sure that people feel safe to contribute to the conversation, as opposed to feeling scared of saying the wrong thing. 

                          We know as EDI practitioners, from all of the research that’s been done on psychological safety and the importance of team-based psychological safety, that people don’t learn well when they're afraid. There’s this neurological component to all of this, right. And so, if we’re making them feel like they're a bad person for not using the right language or the right term, that’s not going to help them learn, it’s not going to help them be open to the conversation. 

                          So yes, we of course need to correct people when they make mistakes, because those mistakes can cause harm for some groups, and in particular for members of equity-deserving groups. But we also, I think, could view it when the mistake is made in good faith, to respond with some grace and generosity as opposed to change. So you know, when our kids were little, we would always tell them, “Mistakes are how we learn,” and you know, that needs to be true for us as adults as well. 

                          That said – and we sort of touched on this a little bit – but you know, I do think that because of this backlash that we’re experiencing in the moment, that EDI has also become a catch-all for everything that people feel threatened by in our modern world. People are feeling displaced, people who are used to being centred in workplaces, in conversations in terms of their values, they are feeling displaced, and so what they're doing is, they're hanging onto this concept of – 

                          It’s like political correctness in the nineties. Not to date myself, but that was a term that people used as a joke, but as a positive thing. It was a good thing to be politically correct for a period of time, and then that term got co-opted.

                          Or it’s like the term “woke,” you know, which was co-opted, and now is being treated as a slur; it’s something that people call something, so they can ridicule it or dismiss it. 

                          So, I do think that we need to put into perspective the fact that a lot of the criticism of EDI is not actually fair, that EDI isn’t this nefarious plot to rid workplaces of straight white men. EDI is just a set of practices. It’s about making sure that people are protected in the workplace, that they're not discriminated against, that they feel included. And at the end of the day, that they have the same opportunities to be as successful as everyone else.

                          And all of the research shows that EDI – it’s kind of ironic actually, that people who might be considered far right or extremely conservative are coming down against EDI, because EDI is actually really about creating environments where people are a lot more productive. EDI is good for capitalism. You know, it’s about making sure that people can do their best work where they don’t have to hide or cover parts of themselves in order to fit in, where they're not dealing with constant microaggressions, constant experiences of being a bias or harassment or discrimination. 

                          But people do feel threatened, and I think that’s where so much of this is coming from. Because when you're used to privilege, equality feels like oppression. We say that all the time, and I think that that is really true. 

Julia:                 So, how do we make sure to protect these values that you mention? What can we do as part of the Canadian Bar Association, or even our listeners, either working in the law firm or a medium, small one, in an NGO like me, or also a student? So, what can we do our little part here to make sure we protect those values, and that we can continue to move towards a more EDI world and workplace in our policies. 

Nikki:               Well, this I think is where we go back to Charlene’s point about needing to invest resources and not being able to do this stuff off the side of our desks. So, I would say, you know, obviously there’s no magic bullet, but the fact is that right now the loudest voices are the critics of EDI. And so, I think the best way to resist that – to resist that backlash – is with education and with leadership. So, we need to take back the narrative, but we also need our allies and our leaders to help us do it. 

                          So, if we take for example, the myth of reversed discrimination which so much of this is built on, we need to explain to people so that they understand that EDI isn’t about special treatment for a few people. It’s about fairness for everyone. 

                          You know, I often hear people say – they kind of say it as a joke, but they're not really joking – but it’s like, “You know, it’s really hard to be a straight white guy these days.” And we do need to push back on that narrative. You know, what makes you say that? Where is the evidence to suggest that it’s easier to be Black or brown or queer or disabled or neurodivergent or whatever – a woman – in this space? Because I don’t see it.

                          We’re not seeing it in the numbers, especially when we look at them over time. And I'm talking now about within individual organizations, again because we do have this data problem in the profession where we don’t have the big picture numbers.

                          But we also don’t see it in terms of who’s getting access to great work. I certainly don’t see it in terms of what people are telling me when I meet with them. Because I spend a lot of time meeting with people one-on-one, or in sort of small group listening sessions to really learn what is going on on the ground. Because your policies can say all sorts of things and your leaders can say all sorts of things, but that’s not necessarily going to be aligned with the experience that people are having in the culture or at work.

                          And I also think, you know, there are people who aren’t critics of EDI necessarily, but they may not totally realize what is at stake with the backlash. And I think we need to do a better job of explaining to those folks why it’s really like, moving backwards is not an option here. 

                          Because what we’re talking about is the difference between a modern and yes, very imperfect workplace, but a modern workplace where people are treated with fairness and respect – or at least, that’s what we’re driving toward – versus a workplace where your ability to be successful and to be treated well is going to depend on your relationships with people in power, your proximity to power. 

                          And I don’t think any of us wants to go back to those kinds of environments, the way law firms used to be, you know, the way organizations used to be. And that’s really what’s at stake here.

                          But then the most important thing is that our leaders need to step up. So, we often talk about the diversity tax. So you know, we can't make this – it can't be another thing, and we see this a lot in organizations where the very people who are experiencing the barriers, then actually are being expected to do the heavy lifting on EDI, to roll up their sleeves on the employee resource groups, or to volunteer or do it off the side of their desk. 

                          And it’s the same with this backlash; it can't be the responsibility of your employees to have to provide the counter narrative. Because if you’ve said on your website that EDI is one of your law firm’s or your organization’s core values, well, now is the moment to defend it. Here’s where the rubber hits the road. 

                          And then I’ll say one last thing which is, just like anecdotally, but I think that this was really – it stuck with me. So, when Elon Musk did that whole “DEI must die” thing on Twitter, you know, I remember thinking, well, there’s such a vacuum; why is nobody stepping in and saying anything? Where are our leaders on all of this?

                          And Mark Cuban, who’s a billionaire businessman, he ended up stepping in and taking – he had a Twitter call – Twitter beef, as my kids would say – with Elon Musk. And he was interviewed about this, and he was asked why he took Musk on publicly, and he said the most amazing thing. He said, “I kept waiting for someone else to do it, and nobody did.”

                          And so, I think our message to Canadian managing partners and senior law firm partners and other legal leaders has to be, stop waiting for somebody else to do it. Because no one else is coming to defend the most vulnerable members of either your firm or your workplace or our profession. You’ll need to do it. 

                          And you know, people say, “How can I be an ally?” This is your moment, this is it, this is how you can be an ally. All the examples that Charlene was giving around trans inclusion or anti-Black racism, that’s what they are attacking right now when they're attacking EDI. And so, if you really want to be an ally, if you meant it when you put that black square up during the uprising around George Floyd and Black Lives Matter; if you mean it when you put that rainbow flag on your Facebook profile, then now is the moment – Facebook; I’m really dating myself. You ou want the senior straight white guys to take on that role.

                          And I know that they believe it, or many of them do. Many of them leading law firms right now, they know that it’s important, but they need to step up, because their people are watching and waiting to feel like they're not being attacked anymore. 

                          Sorry, it sounded like I was just about to cry, but really, I was just about to cough. Their people are watching and waiting, and they want to – you know, they don’t want to feel like they're under attack. And I think all of us who are members of equity-deserving groups right now feel very much like we are under attack. And so, we need the narrative to change and we need leaders to help change it. 

Charlene:          For my part, what I will say is, I think it’s important that people understand what choice means in this era that we’re in and what miss means in this era we are in. I was going to talk about Mark Cuban’s response to Elon Musk, because it was just brilliant, and so thank you – thank you for bringing that to the conversation, Mark Cuban’s answer, which is as close as you can get to here’s an elevator pitch on why we’ve been doing this.

                          Even may have been called by another name in decades past; it’s the same work, allowing everybody access to come into your business and succeed and help your business be successful.

                          And so, when we talked about choice, we are at a stage now where everybody has choices that they didn’t have before. I was the president of the Black Law Students Association at my alma mater, Dalhousie University Schulich School of Law, and there were eight of us. I just went to the Black Law Students Association of Canada National Conference, and there were over 600 people there. 

Nikki:               That’s amazing, that’s incredible. 

Charlene:          And that’s breaking the previous year’s record of 500. The conferences and gatherings for lawyer and student organizations from the Asian, the South Asian, Indigenous communities and the queer community are growing bigger than ever. 

                          We were proud last year as a firm to sponsor PRISM, which is a new gathering for queer lawyers and law students, in addition to all of the great work done by [Alon Bay? 01:10:56], Pride at Work Canada. And so, I say that to say, just harking back to number one, we have one hiring pool, and no matter what choice you make, that hiring pool is not changing. 

                          And so, as law students, laterals and other job seekers in the labour market, there has now been enough change where talent has a choice. And I know they're asking questions because I hear from Black students across the country, not just the ones that come through our firm. And I tell them, “Ask the questions. As a firm I'd be happy to answer what ‘is considered a tough question.’ Not everybody has to be at the same place we are, but ask the questions, and within a system that sometimes makes you not feel valued, you are actually very valued, right. If there are 600 law students in the room, we can't do this thing called the legal profession without them.”

                          And so, they're making choices and they're choosing where to start their careers based on a lot of what we discussed today, where to start their careers and where to continue and stay in their careers.

                          And you know what, at the end of the day legal leaders have choices too. Nikki, you mentioned something about a return back to the old days. I acknowledge that there are people that just want it to go back to the way it was, and I acknowledge that, you know, because for a variety of reasons, this is hard. We already press people, they have their own reasons that go beyond bias or discrimination, that are just like, “This isn’t for me. I just want to run my business, hire people who look like me from my network, mentor people who look like me from my network, because it’s worked for so long.” 

                          And that’s a choice you make. With that choice comes risk. McCarthy is not a Mom and Pop shop, it’s Canada's first national law firm and it’s our largest firm. I, as a member of the C-suite team, and my CEO, we have a duty to ensure that when we leave the business, that we have done our part to make that business generation proof, if you understand what I'm saying. 

                          It is bigger than our individual terms or mandates; this is a generational business. And if you want to make the choice to form your business to what is by definition a narrow world view and a view that’s lacking innovation on the future of working talent, that’s an absolute choice. There is a corresponding risk; you know there’s going to be a Wikipedia page of the law firms of yore in Canada that no longer exist anymore, and that’s a choice – everybody has choices to make in this time.

                          And so, we talk about what we should do specifically to equity-seeking people or people who are not only trying to thrive through this, but also trying to prove themselves and do work ten times harder to get half as much. I say make choices that suit you; you don’t have to worry as much as we used to as a collective community about making this huge change in firms. Because quite frankly, it’s not your responsibility. 

                          Your input is valued, but firms at this point, in 2024, should be able to have a basic level of cultural competency to be able to do or outsource this work themselves. So, I think right now, what people need to do is make some choices and be aware of the choices that they make, and to understand the consequences and risk that they're taking on with those choices.

                          I say this with my own bias. I used to do a lot of work convincing people why this was a good idea. And there’s still a lot of amazing lawyers and diversity practitioners that make a very good living and have a lot of impact convincing people of the why.

                          I very, very long ago, quite frankly for my own sanity as a Black woman in this space, restricted myself to working people that were getting on with the how. And so, you don’t need to know how to do everything – that’s not the expectation. But if you're convinced as to the why, or open to learning about the why, there is a community of amazing professionals within or without your firms that will help guide you to the how. There are so many ways to achieve the how, right.

                          I think it’s important that everybody make those choices, and for those that are no longer concerned with why we should do this, but how do we get this done, those are the kinds of people that I work with, and those are the kinds of people that I think your future partners, your future CEOs, your future managing partners, those are the kinds of places that people are looking to work. 

Julia:                 I feel like this episode has been very also practical. And you’ve given a lot of examples, a lot of – you know, you said you don’t want to say the why, or asking the why has been very present here also. And I think if some people were not convinced, this kind of podcast helps. 

                          And also, you gave example of the how and that we can reach out also to both you, also other people in that sphere who can help with the how to do the EDI and how to implement them. 

                          And thank you very much. It’s been very inspiring, honestly, and thank for also the time you’ve been very, very generous with, so thanks a lot.

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