The Inclusion Index is the latest causality in a war over equity in the LSO
On June 28, 2022, the Law Society of Ontario (LSO) Convocation (a monthly meeting of LSO benchers) approved a motion not to release the Inclusion Index (“the Index”), an initiative meant to chart equality, diversity, and inclusion (EDI) progress in the legal profession. Ultra Vires (UV) investigated why the Index was not released and, in the process, discovered a far more significant rift within the LSO about the future of equity and how to address systemic racism within the profession.
The Index was developed in 2019 following Recommendation 6 of the Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Profession report. The purpose of the Index was to measure the LSO’s progress in breaking down barriers faced by racialized lawyers and paralegals. Many firms capitalize on EDI branding; however, currently, there is limited regulation and accountability of equity within the profession. The Index would thus provide a measure of transparency and accountability.
After the June 28 decision not to release the Index, UV received an email from two licensees questioning the Convocation’s decision. UV proceeded to investigate the issue over the next four months.
Under Recommendation 6, the LSO would develop and publish an Index every four years based on questionnaires answered by licensed individuals in workplaces of at least 25 licensees. To create the first Index, the LSO collected licensee information in the 2018 Annual Report about self-identity (based on race, ethnicity, gender, sexuality, etc.), experiences related to inclusion, respect, and safety in the workplace, along with workplace EDI policies/programs.
Using a series of metrics, workplaces would be given a diversity score (based on demographics), a commitment score (based on EDI programming), and an inclusion score (based on the workplace culture/environment). Workplaces would then be given an overall ranking and the label of superstar, accidental superstar, inclusive, diverse, accidentally inclusive, accidentally diverse, commitment only, and needs improvement.
To uncover what happened with the Index, UV first considered a Freedom of Information request to the LSO. Unfortunately, after speaking with several people knowledgeable in access to information law, UV concluded the LSO would likely not be a covered “institution” under the Freedom of Information and Protection of Privacy Act. This in itself raises questions regarding the accountability of LSO decision-making. As a result, Alyssa Wong (2L) and I proceeded to read through the public minutes and transcripts of the LSO Convocations from 2019, 2020, 2021, and 2022. Several records were only available upon request, but the LSO did not respond to UV’s inquiry.
Little was mentioned about the Index in the available materials until the May 26 and June 28 Convocations. Prior to the June meeting, the Index faced staunch criticism. In the May 26 Convocation, Bencher Murray Klippenstein claimed that the Index sought to “enforce a system of de facto race and gender quotas” such that legal professionals “would be hired, promoted and appointed, not based on their competence, their smarts, their skills, their hard work and their contribution, but, instead, based on the skin colour, facial features and sex chromosomes that they were born with.” This statement seems to imply that hiring, promotion, and appointments are currently meritocratic. Bencher Klippenstein also noted the Index was based on an ideology of “wacky wokeism.” Klippenstein later issued a statement of claim on June 17, 2022 with himself as the plaintiff and the LSO as the defendant to access the Index. Klippenstein alleged the conclusions were invalid due to improper data collection.
During the June 28 meeting, the benchers debated the recommendation by the Equity and Indigenous Affairs Committee (EIAC)—the body responsible for the Index—to not release the report. At the meeting, Dianne Corbiere, the Chair of the EIAC, explained that a confidential peer review of the Index found it was not transparent enough, and the methodology was flawed. Furthermore, the Index was an outdated reflection of EDI progress in the profession since it was based on data collected in 2018.
UV obtained the EIAC report on the Index presented to the June Convocation. The report explained the onset of the pandemic in March 2020 impacted progress on the Index, which prompted the peer review by Michael Ornstein, Sujitha Ratnasingham, and Scot Wortley. The peer reviewers presented their findings to the EIAC in May 2022, with the relevant conclusions presented to the Convocation in June. Unfortunately, UV could not obtain the May 2022 findings as all committee materials and minutes are confidential.
During the June 28 Convocation, several Benchers argued for a total abandonment of the Index. Bencher Sam Goldstein called the Index a “race audit” that would divide the profession into “people who are white and people who are not white.” Bencher Michael Lesage felt the index would be a “naming and shaming” of firms and essentially become a form of advertising for the firms that ranked highest, which Bencher Lesage thought would likely be some of the largest firms in the province. Finally, Bencher D. Jared Brown stated: “let’s release this turd to the public. Let’s show them what you guys have been working on. That’s transparent.”
Bencher Julian Falconer noted that the above criticisms (from Benchers Goldstein and Brown) came from the slate that campaigned against the statement of principles (SOP) in 2019, another equity initiative proposed by the LSO. In the SOP, licensees would have acknowledged existing human rights obligations (i.e., to not discriminate in practice) and reflected upon how such duties were relevant to one’s practice. The StopSOP slate (now FullStop) subsequently mobilized to repeal the SOP, claiming it amounted to compelled speech. In the June 2022 meeting, Bencher Falconer noted that the slate consistently campaigned against equity initiatives without providing positive suggestions or alternatives. In the end, a majority of 40 benchers voted in favour of not releasing the Index.
While it appears as though the Index was not released due to stale results and flawed collection, the actual data is still unknown. This fact raises questions by some in the profession about transparency and whether the Index data should still be released as a demonstration of commitment to racial justice. Furthermore, questions remain as to the timeframe from the LSO to address these lingering issues.
More broadly, however, it is clear the Inclusion Index was caught in the crossfire between warring factions of the LSO. Those, like members of the StopSOP slate, oppose equity initiatives of many kinds due to “wacky wokeism,” “stifling” political correctness, and a perceived culture war. In September 2022, John F. Fagan—a StopSOP slate member—penned an article celebrating the June demise of the Inclusion Index, claiming the actual “fastest and proper way to conquer any residual racism in the Ontario legal or paralegal professions” is to “confront […] individual instances of provable discrimination based on ethnicity […] by the traditional methods of accusation, proof, due judicial or quasi-judicial findings, and enforced due consequences for proven discriminators.”
Those in opposition to these licensees, such as Professor Joshua Sealy-Harrington, claim lawyers like Murray Klippenstein think the legal profession is “post-racial” and fail to accept the fact that systemic racism is still alive and well. As demonstrated by John Fagan’s article, some feel that “residual racism” is best fought via the tried and true methods of the law, relying on the belief that the legal system can effectively address social ills. However, as law students and lawyers know, the wheels of justice move far too slowly, and our legal system is likewise founded on white supremacist settler colonialism. Moreover, the Inclusion Index sought to address systemic racism within the profession (like subtle structural barriers in practice), whereas the method proposed in Fagan’s article addresses individual, intentional discrimination. As a result, other methods, like equity initiatives, are required.
It appears as if the LSO is caught in the middle of a staunch tug-of-war, preventing it from addressing systemic racism and other equity concerns. Will one side have to emerge victorious for meaningful action to occur? Or can a compromise be reached? Only time will tell.
