The Daily Work of Fitting in as a Marginalized Lawyer.

Author:Brooks, Kim

Introduction I. Method II. Workplace-Based Strategies to Facilitate "Fit" A. Covering Strategies B. Compensating Strategies C. Mythologizing Strategies (i) It's Probably Not Discrimination, It's Just Me (ii) I'm Paving the Way for Others (iii) I Need to Stay in My Own Lane (iv) I Need to Accept This for the Client (v) This is Just the Way It Is, and I Need to Suck It Up D. Passing Strategies E. Exiting Strategies (i) Exiting Social Situations (ii) Finding Mentoring and Support Outside the Workplace (iii) Limiting Practice to Particular Areas of Law (iv) Limiting Practice to Particular Types of Firms Conclusion Introduction

Published by The Globe and Mail with a front-page leader on November 4, 2017, Hadiya Roderique's "Black on Bay Street" created a sensation. (1) Since then, Roderique has been interviewed about her experience on BNN Bloomberg, CTV, and CBC. (2) Her article has inspired hashtags, (3) created space for others to tell their story, (4) and motivated some to reflect publicly on how the legal profession needs to change. (5) Roderique received the Gold Award for best personal essay at the 2018 Digital Publishing Awards. (6) What is most remarkable about Roderique's story, though, is how un-extraordinary it is. (7)

One of the powerful aspects of Roderique's narrative is her clarity in articulating the myriad ways she either considers adjusting or adjusts her behaviour to conform to "Bay Street" expectations.8 She contemplates "whitening" her resume by using her anglicized name, and removing references to her membership in the Black Law Students' Association and receipt of the Harry Jerome Scholarship; (9) she purchases a black and grey suit to meet dress expectations and considers whether to straighten her hair; she talks to colleagues about footwear, the Leafs, yoga, cottages, and Glenfiddich; she eats slowly to avoid spilling and drinks wine in "acceptable" ways; she works demonstrably long hours and tries to display both work and extracurricular excellence; she exits uncomfortable or racist conversations without raising concerns; she strategizes about with whom to work to build her skills and substantive knowledge; she finds Black lawyers to serve as informal mentors; and she manages her own intelligence so that it does not make others uncomfortable.

Roderique's narrative reminds some of us (those who are not conscious of the ways we strategize to "fit in" in legal practice or those of us who do not have to) that despite increased public dialogue about the need for inclusion in legal practice settings, many lawyers still have to employ strategies to be accepted within the legal profession. This article makes a novel contribution: it offers a taxonomy of work-based strategies used by marginalized lawyers seeking to "fit" within their work environments. The taxonomy is useful because understanding the types of strategies lawyers use to "get by" both helps make the work those lawyers are doing to fit in transparent and allows firms and colleagues greater access to ways in which they might change to better include their marginalized colleagues.

As a result of undertaking qualitative empirical work and careful analysis of the data collected, marginalized lawyers' strategies for coping in their legal practices are described within five categories: covering, compensating, mythologizing, passing, and exiting. The categories are distinguished because each reflects a different response to exclusion from the workplace, or, put another way, a different set of survival strategies that the person believes--whether consciously or unconsciously, realistically or unrealistically--they have to undertake to be included, or fit, in their legal workplace and as a result to succeed as lawyers in that environment. Each also suggests a different set of possible responses that firms or legal colleagues might want to consider to better include marginalized lawyers.

Before discussing the study's method and the qualitative findings, it is important to be explicit about what this article does not explore. First, the article accepts that the experiences of lawyers from marginalized backgrounds are different from the experiences of lawyers who are white, able-bodied, middle- or upper-class, Canadian-born, straight, and cisgendered. (10) To that end, it does not attempt to prove that marginalized lawyers face discrimination. (11) Second, it focuses on lawyers who have "made it" in their professional contexts. Each of the lawyers interviewed had been in practice for at least five years. As a result, the study does not offer insights on coping strategies that were not sufficient to enable lawyers to stay in the legal profession, nor does it claim that the mechanisms discussed are adequate to enable a marginalized lawyer to stay in the profession. In other words, the article is not designed to make empirical claims about the prevalence of each coping mechanism discussed nor about the consequences of adopting the highlighted mechanisms (in terms of whether these coping strategies guarantee acceptance by "normative" lawyers in the legal profession). Third, the article neither describes nor documents in detail the barriers to entry into the legal profession, the likelihood that marginalized lawyers will be retained in particular practices, or the costs and harms to marginalized lawyers of relying on these coping mechanisms to fit. (12) Finally, the article does not posit, except in a preliminary way in the conclusion, legal or social responses that would reduce the likelihood that marginalized lawyers would need to rely on the strategies discussed. (13)

  1. Method

    The data used to illustrate how marginalized lawyers cope in their legal workplaces is drawn from a larger qualitative study of professionals who self-identify as members of groups traditionally under-represented due to race, ethnicity, Indigeneity, gender or sexual identity, working-class background, and/or disability. Given that there have been a significant number of studies on women lawyers as a discrete category--both qualitative and quantitative--we did not seek to interview lawyers who did not identify with at least one of the other listed groups. Our result was that our sample compelled us to take an intersectional approach from the outset. (14)

    Ninety participants were recruited, thirty from each of three professions--academia, social work, and law. Participants from law were recruited through snowball sampling with invitations sent to the researchers' professional contacts as well as through law society email networks. (15) Following discussion of informed consent, semi-structured interviews explored everyday experiences of belonging and marginality, inclusion and exclusion. Each participant was interviewed once, for 60 to 120 minutes, face-to-face or by telephone. Interviews were recorded and transcribed verbatim. Participants were assigned pseudonyms. Data was managed through ATLAS.ti software and coded by two research assistants to identify major themes. Weekly team discussions were held for coding consensus. Over time, a code list was developed with code definitions. Transcripts were read repeatedly, attending to meaning passages, and moving back and forth between individual transcripts and across transcripts. A summary was returned to each participant for feedback. Collective interrogation of emerging themes and theoretical frames of analysis enhanced rigor. The study did not attempt a representative sample, as generalizations were not the aim. Instead, we sought participants able to articulate depth of experiences. As member checks, participants were provided with a summary of their interview. Dalhousie's Social Sciences & Humanities Research Ethics Board approved all processes.

    In the larger study, where we sought to explore marginalized professionals' everyday experiences of belonging and marginality, inclusion and exclusion, we anticipated that we would find significant illustrations of instances of exclusion--whether explicit or implicit, intentional or unintentional. In the more specific analysis in this paper, I focused on the lawyers in the sample. I anticipated our participants would explain the ways they mitigate the effects of that exclusion and that their strategies would have common elements that could be clustered and described.

    Participants ranged in age from their early thirties to mid-sixties. Some participants have been practicing for as little as five years, while others have been practicing for over forty years. The majority of participants entered law school in their twenties; ten participants entered law school during their thirties. Nineteen participants identified as racial and/or ethnic minorities, with four of those participants identifying as Indigenous. Seven participants identified as LGBTQ+, with two identifying along the trans spectrum. Four participants identified as having a disability and twelve as coming from a working-class and/or impoverished background. Almost half of the participants identified with multiple identification categories.

    We sought diversity by region and type of practice. Nine of the participants practiced in Eastern Canada, fifteen in Central Canada, and five in Western Canada. Participants worked in private practice settings (large, small, and solo), in legal aid, as in-house counsel, and as government lawyers (federal and provincial). Their main practice focus spanned general litigation, corporate solicitor work, criminal law, human rights law, disability law, Aboriginal law, labour and employment law, international law, and poverty law. To avoid breaching confidentiality, the paper uses few demographics in describing the experiences of particular participants.

  2. Workplace-Based Strategies to Facilitate "Fit"

    Our interviews revealed that all participants employed some strategies to work effectively in the practice of law. An extensive review of the literature on the experience of...

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