Articling, Harassment and Discrimination - 2024

Articling, Harassment and Discrimination - 2024

 
Did you see the E-bulletin from the Law Society of Alberta last Friday (September 27^th) informing the legal community about the results of the 2024 Articling Student Survey. Like many news reports, it contains both good news and bad news.
 
This isn’t a joke where a doctor asks a patient if they would like the good news or the bad news first. We are going to talk about the good news first because it makes sense from Assist’s perspective, and then we are going to delve into the bad news to share ideas and strategies about how Assist can help.
 
The Law Society of Alberta conducted a survey of articling students and lawyers in their first five years of practice in 2019 seeking information about their articling experiences. Two themes emerged from the 2019 study—articling students and junior lawyers did not feel well-prepared to practice law, and about one-third reported experiencing harassment or discrimination during either their articling year or the recruitment process. The purpose of the 2024 survey was, in part, to measure progress in terms of these two themes.
 
The 2024 study showed that more new lawyers felt prepared or well-prepared for entry-level legal practice. In 2019, only 38% of survey respondents felt this way, but 69% of 2024 respondents felt prepared or well-prepared. The survey notes that young lawyers felt that the quality of mentorship has improved since 2019, and that use of learning plans had increased from 13% in 2019 to 48% in 2024. It looks like progress is being made to provide entry-level skills to students who successfully complete their articles! And this makes Assist happy—when young lawyers feel more competent, they are generally more resilient and happier.
 
But we are not doing as well, as a profession, in terms of nipping harassing and discriminatory behaviour in the bud. Thirty-one percent of respondents to the 2024 survey reported experiencing discrimination and/or harassment during either articling or recruitment periods. This is down slightly from 2019 (32%), but not in a statistically significant way.
 
You can access the complete report at but needless to say gender and belonging to an equity-seeking group played a large role.
 
I was curious about the types of behaviours identified by respondents. I began working with workplace harassment and discrimination issues in the early 1990s. I told people that being a woman working in a law firm in the 1980s qualified me for this work, sadly.
 
And equally sadly, the gender-based behaviours I saw in the 1980s have continued. The Report summarizes gender-based harassment/discrimination as:

• Demeaning sexist jokes or comments
• Sexual harassment, including remarks on female students' appearance
• Clients verbally abusive to women, polite to men
• Discriminatory interview questions and feedback (e.g., questions about childcare, plans to have children)
•  Inadequate accommodations for pregnancy-related needs (e.g., expressing anger when a pregnant student was prescribed bed rest and needed to work from home)
• Women assigned less billable work, treated as assistants

 
Equity-deserving group harassment/discrimination included:

• Racialized and internationally trained lawyers reported that they were treated as inferior or less likely to be offered positions
•  Unconscious bias evident in partners' feedback, evaluations, and work assignments for racialized lawyers
• Student repeatedly identified/introduced as gay without their consent or relevance
• Lower pay for racialized articling students compared to white peers
• Justices assuming racialized students are interpreters, not lawyers
• Offensive jokes targeting the student's ethnicity

 
None of this is acceptable in the 21^st century (and it wasn’t acceptable in the 20^th century, either, for that matter.)
 
Fifty-three percent of respondents who experienced harassment/discrimination did not report the incident to their employer, the Law Society, the Human Rights Commission or any other administrative body.
 
Reasons provided by respondents for not reporting harassment/discrimination included:

• Fear of reprisal (62%)
• Lack of trust in the system’s efficacy (59%)
• Didn’t know how/who to report to (25%)
• Perceived insignificance of incident (11%)
• Accepting such experiences as a norm (10%)
• Discussed informally with principal or careers team instead (3%)

 
Further, of respondents who reported incidents, only 30% experienced “positive outcomes” while about half said that no resolution was achieved.
 
I put “positive outcomes” in quotation marks because that term could include a range of outcomes. It could mean that the incident was found to be harassment/discrimination, and it implies that the consequence to the harasser/discriminator was acceptable to the respondent. But the reality is that decision-makers within an organization determine the consequence, not the person who experienced unacceptable conduct. So, I think we have to be careful how we read this section.
 
Forty-two respondents reported harassment/discrimination to their employer. In slightly more than half of the cases, nothing was done (22 of the 42 cases—52%). Eleven of the respondents viewed the outcome as positive (26%), and six experienced negative consequences themselves (14%).
 
I investigated harassment (and designed policies and compliance programs) for many years where we focused on the finding of whether harassment had occurred. A one-in-four rate, where harassment within the meaning of the applicable policy is found to have occurred, is very low, in my experience. This may be because many legal employers do not have harassment policies that provide clarity about expectations as well as definitions. But we should be concerned that legal employers’ rates of both dealing with harassment allegations and findings of prohibited conduct are extremely low.
 
Seventeen respondents reported harassment/discrimination to the Law Society, and ten of the seventeen (59%) reported that no action was taken or that no resolution occurred. If I were in a management position at the Law Society, I would look into these situations to determine whether respondents chose not to take further action (e.g. chose not to file a complaint) and to ensure that no reports were left unresolved. Only four of the seventeen respondents (23%) experienced “positive outcomes” (which may be placement in a new firm as part of the Articling Placement Program.)” Two individuals (12%) reported experiencing negative consequences.
 
You can see why students and junior lawyers are reluctant to report these incidents!
 
One of the issues with both the 2019 and 2024 surveys is that “harassment” and “discrimination” were not defined, so that respondents reported their subjective interpretations of these terms. Not linking these terms to legal definitions is not an error—it just shows something different than linking terms to legal definitions would, and the subjective experiences of students and juniors is important. But it means that many individuals who experienced problematic behaviour from a person in a position of authority may not have had access to a relevant definition against which they could compare their experience, causing a higher incidence of no action/no resolution.
 
This is because we use terms like “harassment” and “bullying” and “discrimination” in our society fairly broadly. It is not uncommon for an employee whose supervisor is attempting to deal with a performance issue to be accused of harassing them—even when the performance management is being conducted fairly. “Bullying” is similarly over-used, sometimes referring to someone who disagrees with us. I would like to think that we don’t use discrimination quite as indiscriminately, but there are times when we believe that someone is treating us differently due to a human rights-protected ground when we aren’t in fact being treated differently or there is a non-discriminatory reason for the result. It is complicated.
 
Because I am now running a support program rather than an anti-harassment program, I am very concerned about respondents who felt that they had experienced harassment/discrimination who were subsequently advised that their experiences do not qualify under the terms of a policy--it feels like insult on top of injury. There is work to be done with respect to helping everyone in the Alberta legal community understand harassment and discrimination.
 
But from Assist’s point of view, we want to ensure that all incoming members of our profession are aware that if they believe they are experiencing harassment or discrimination, they can contact us. We can connect them with professional counselling resources which can be very helpful for processing their experience and moving forward. And we can connect them with peer support lawyers who experienced harassment/discrimination during their careers who can share their experiences and insights.
 
At Assist, we are not concerned with whether the conduct you experienced meets a legal or policy definition—our focus is on how you feel and helping you get to a place where you can move forwards, whatever that means in your life.
I understand that there are about 500 articling students in Alberta, with another 150 or so taking PREP before articling. This is a very large cohort of newcomers to our profession. The unfortunate reality is that some will accept articling positions without pay or where harassment or discrimination may occur.
 
Assist will continue our articling student outreach through personally signed holiday cards, and we are investigating how best to connect students with our programs and resources because we simply do not have enough volunteers to place phone calls to this many people. Watch for opportunities to be involved!
 
And if you meet a student or young lawyer who confides in you that they are experiencing something along the lines of harassment or discrimination, here are some ways that you can help them:
 

• Listen to them without judgment and without planning your response. As lawyers, we learn to reach conclusions quickly, and we start a mental list of what we need to say back while the other person is speaking. These are skills that serve us well when we are in court or a boardroom. But when someone is sharing a painful experience, just listen.
• Confirm any relevant details to help you understand what happened—but let small questions go.
• Validate their feelings.
• Ask them if they feel safe. If they don’t feel safe for any reason, know that you can call Assist for help—or call 911 if their life is in danger.
• Tell them that Assist can provide free professional counselling to them—they just need to call 1-877-498-6898 during office hours (8 am to 4 pm Monday to Friday) to set up the first appointment.
• Reassure them that crisis help is available 24/7 by calling that same number and listening to the recording which will provide the name and phone number of the counsellor on call.
• Encourage them to explore peer support when they feel comfortable. Another lawyer who has been through a similar experience can help them feel less isolated and to find hope.
• Suggest that they speak to a Practice Advisor. Practice Advisors can provide advice, and their services are under a “cone of silence” within the Law Society. This can be especially helpful for students and lawyers who are considering filing a complaint.
• The Practice Advisors fill the Equity Ombudsperson role, so a student who is in an unacceptable articling position may want to gather information about the Law Society’s Articling Placement Program, where a student can be moved to another firm.
• Offer that Assist’s Executive Director has an extensive background in harassment and discrimination law and may be able to provide context for legal definitions and processes. They can call me at 587-779-7205. I am a confidential resource, too.

 
While we are making progress in preparing new lawyers to practice law, we are not successfully tackling harassment and discrimination in our profession. This is an issue that one individual, or even one firm, cannot solve by itself, even with the support of the Law Society. The only way that we can effect culture change is through clear, consistent and definitive action, involving all stakeholders in our profession.
 
I noticed a Manitoba Law Society decision recently where a lawyer was suspended for 30 days after being found to have sexually harassing a law student. Justice needs to be done, and it needs to be seen to be done.

Loraine