Allegations of racism at the DOJ cause a stir
By Cristin Schmitz, Ottawa
The Lawyers Weekly, March 7, 2008
Allegations to the Senate that visible minority lawyers are discriminated against at the federal Department of Justice (DOJ) when it comes to hiring, responsibilities and promotions has prompted a number of racialized DOJ lawyers to speak out.
Toronto lawyer Mark Persaud drew headlines last month when he told a Senate committee examining employment equity in the public service that racism was rife at the 4,800-employee department in 2003 when he left due to health reasons, after 10 years as a civil litigator and criminal prosecutor in Toronto.
Persaud, who told The Lawyers Weekly he has retained counsel to look into suing his ex-employer for constructive dismissal and abuse of authority, charged that the DOJ’s “poisonous, toxic culture” has spurred many visible minority lawyers to leave over the years.
He alleged visible minority lawyers have been subjected to systemic discrimination which makes them less apt than their co-workers to be recruited, mentored, promoted or get access to the types of files that help lawyers move up the DOJ career ladder.
“My experiences as an employee of the DOJ are an example of the problems that have been festering for many years without being adequately addressed — these include overt racism and intimidation of employees,” Persaud said.
Persaud, who arrived in Canada as a refugee from Guyana in 1983 and earned a Master’s of Law, told the Senate an ex-DOJ lawyer who is now a judge recently privately described the DOJ “as the most racist institution I have ever encountered.”
Persaud said he was the last of his visible minority colleagues to leave the department’s civil litigation section in Toronto. “The primary reason was we thought there were no proper opportunities as visible minorities to be promoted equitably and fairly.”
He also complained that while the department doesn’t generally include visible minority lawyers on its hiring panels, it “parachuted” in a black lawyer to defend Persaud’s appeal against a denial of a promotion.
DOJ employment equity data for 2006-2007 obtained by The Lawyers Weekly disclose that 88 per cent of visible minority lawyers are concentrated in the department’s two lowest salary categories, as compared to 71 per cent of white lawyers in the lower ranks. Visible minority lawyers are totally absent from top management. The data also show that the DOJ’s visible minority employees have a higher turn-over rate than their white colleagues (see “Visible minorities absent from DOJ upper ranks” below).
An anonymous government survey at the DOJ in 2005 revealed that 41 per cent of visible minority respondents felt they were not fairly classified in their employment category when compared to others doing similar work, versus 34 per cent of white employees who felt they were unfairly classified (see “Discrimination surveyed at the Department of Justice” below).
In a letter to the editor of The Ottawa Citizen last month, DOJ Deputy Minister John Sims took strong exception to Persaud’s allegation that there is overt racism at the DOJ, stating that the department does not tolerate racism or discrimination in any form, and fosters a “fair and welcoming work environment.” The DOJ’s “representation of visible minorities is at 11 per cent, which is above the current workforce availability of 10.4 per cent,” Sims wrote. The deputy minister did not respond to a request for an interview.
The Lawyers Weekly asked seven current and former DOJ lawyers, who are members of racialized minorities, whether they have personally experienced – or have seen colleagues’ subjected to – racism within the department. Five of the seven said they had personally experienced or witnessed discrimination, although only two said it was blatant or overt in the sense of crudely racist remarks, for example. Six of seven lawyers said they believed there are systemic problems that hurt visible minorities. All had heard first-hand complaints of discrimination from other visible minority colleagues within the department.
“There is a [promotion] ceiling. It exists. I am not going to lie,” said a federal prosecutor who asked not to be identified, as did five of the seven lawyers interviewed. “It has to be [anonymous], or I would lose my job — they could make it so impossible, you would want to leave,” the lawyer said.
With few exceptions, visible minority Crowns have not gotten the kinds of files that will get them noticed and promoted within the department, the Crown alleged. “I have always been taught to work my butt off for everything and [that] if you work hard . . . you are going to get what you deserve . . . [but] we have been here for years and we have not gotten the payoffs that we should be getting. But when you talk about this stuff (a), not only is it depressing, but (b). . .it sounds like I have a huge chip on my shoulder and I am just griping. My feeling is that when I talk about this to people, or when I let my guard down . . . people will just step back and say: ‘Ah, just using it as the age-old excuse — the race card.’ I would never be discussing this with any of my managers. Never. I would be labeled a whiner.”
Another Crown, who does not perceive racism within the department, nevertheless identified a failure to recruit enough visible minority lawyers. “The courts are filled with people of colour, they are overrepresented, yet if you look at who is prosecuting them, I am the only person of colour there in the court, day in and day out,” said the Crown.
Another lawyer of colour, who spent more than a decade as a federal prosecutor before moving on several years ago, partly because of frustration at a perceived lack of opportunity to advance, said “it is tough to say there is some kind of conspiracy.”
“I would be shocked if there was any racist bone in [the deputy minister’s] body. I think it’s grossly unfair for anyone to say the Department of Justice is not doing anything, to say efforts are not being made,” he said.
The ex-Crown identified the absence of visible minority lawyers at the executive table as a major stumbling block for minorities. “The various programs that are being developed are being structured by people who don’t really understand the problem.” He and several other lawyers interviewed argued that DOJ must come up with effective and transparent programs to ensure that all segments of its workforce develop the skills to get into management.
Management must be graded, held accountable, and remunerated, for their efforts, said one of the Crowns. “If it remains a nebulous, goody-two-shoes, theoretical ‘we should be doing this’, nothing will change . . . because you can’t leave it up to people’s good will.”
A DOJ lawyer who works on civil files complained of rampant favoritism in the discretionary distribution of files and promotions. “Those that move further are basically those that get supported by someone else that is higher up,” said the lawyer.
While the department pays lip service to wanting to recruit and advance minority lawyers, that lawyer said he was passed over for promotion in what turned out to be a sham competition because the fix was in for a more junior lawyer. “I thought of filing an appeal, but . . . most minorities that you will talk to at Justice, we all know that there is a clear rule that you don’t piss off upper management,” he said. “You don’t file appeals on competitions because you will be put on some kind of blacklist.”
The lawyer also complained that the skills of visible minority lawyers are rarely showcased at the internal DOJ conferences and panel discussions which enhance individual careers. “I have been to at least 15 of them and I haven’t seen one minority lawyer,” he said.
He added that Sims’s written response to Persaud’s allegations demonstrates “that they are absolutely in denial” of the views held by many visible minority lawyers that racialized minorities are discriminated against in hiring, promotion and retention. “If it’s intentional, or not intentional . . . you end up creating a situation where minorities do not feel welcome in the department.”
Ines Kwan, a human rights lawyer of Chinese heritage who chairs the DOJ’s Advisory Committee on Visible Minorities, said DOJ is “definitely not perfect” but “it is a microcosm of Canadian society and there is discrimination in Canadian society so in that respect I don’t think it unusual. There are problems, but I don’t think everyone’s experience has been like Mark Persaud’s. I think that the experience is varied.”
She said she believes that “senior management has taken this issue very, very seriously and that myself personally, and the committee, we are confident that things will be done to improve the situation.”
Kwan she said she hasn’t personally encountered racism at DOJ, “but I don’t want to take away from anybody else’s experience. I haven’t witnessed it myself either, but I have heard accounts from people on our committee who have voiced concerns about their own work environment.”
Kwan said she has had two or three complaints to her since she arrived in 2005. “I do get personal calls from people. . .wondering whether or not race has played a factor in their experience in the workplace. . .in promotions.”
The advisory committee has told the deputy minister more visible minority lawyers should be promoted. It is presently awaiting approval from senior management for a new national mentoring program, Kwan said. “It looks good.”
Viresh Fernando, a chartered accountant and lawyer of Sri Lankan origin who was recruited as an articling student by the DOJ in 1992, says he quit the department’s Toronto immigration section in 1996 because “the racism became impossible”.
Fernando said he became disgusted that management did not publicly condemn remarks made at weekly staff meetings about refugee claimants’ ethnic origin or skin colour which were manifestly irrelevant to the cases under discussion.
“It would come up frequently enough. Nobody objected. Nobody smacked it down. Nobody stood up and said: ‘Wait a minute, we don’t think this has anything to do with anything.’”
However, another DOJ lawyer, who also took exception to one of the remarks complained of by Fernando, saw the remark as merely stupid.
Fernando, though, says he gave up his “dream job” because “I didn’t think that anything would really change. I had a stellar record, and I just didn’t feel that I needed to lead the fight for racial equality within the [DOJ].”
Visible minorities absent from DOJ upper ranks
Visible minority lawyers are shut out of the top jobs at the Department of Justice (DOJ), and also exit the country’s self-described “largest law firm” at a higher rate than their white colleagues, federal government figures for 2006-2007 reveal.
Of the more than 230 visible minority lawyers in the department, none are part of the elite cadre of 35 executive or EX group members. In the year ending March 31, 2007, there were no promotions, or outside recruitment, of visible minority lawyers to the top echelons of the DOJ.
That contrasts sharply with the department’s own ambitious “Embracing Change Benchmarks for Visible Minorities” which aim to have 20 per cent of all executive group members be from visible minorities.
The situation is only slightly better in the other categories of upper management. There are no visible minority lawyers among the 11 counsel in the most senior category (LA-3C) of the Law Group.
The Law Group comprises most of the department’s approximately 2,400 lawyers.
Among the other senior ranks in the Law Group, visible minorities make up only 3.8 per cent of the LA-3A category (seven of 184 general counsel) and 3.1 per cent of the LA-3B category (2 of 64 senior general counsel), DOJ spokesperson Christian Girouard told The Lawyers Weekly.
Girouard said visible minority lawyers make up 4.6 per cent (19 of 416 lawyers) of the first-line management category (LA-2B).
Visible minorities are well represented at the LA-01 entry level (18.5 per cent or 63 of 340 lawyers) and make up 10.2 per cent of the next LA-2A level (137 of 1,348 lawyers). Three of 45 articling students, or 6.7 per cent, were from visible minorities in 2006-2007, Girouard said.
Visible minorities did show gains by garnering 16 per cent of the 214 promotions in 2006-2007 in the Law Group.
The Employment Equity Act obliges federal departments to employ visible minorities at least in proportion to their presence in the work force.
For the fiscal year ending March 31, 2007, the DOJ’s employment equity progress report deems the department to be “representative overall” since 10.5 per cent of the department’s 5,286 employees (inclusive of the Public Prosecution Service and administrative support staff) were members of visible minorities (553 people), which is higher than the 7.9 per cent availability of visible minority workers in the Canadian workforce overall.
On the recruitment front, in 2006-2007 only 8.4 per cent of those offered jobs were members of visible minorities – less than half the DOJ’s self-assigned target of 20 per cent.
According to Statistics Canada, visible minorities make up 13.5 per cent of Canada’s population, a number projected to climb to 20 per cent by 2017, when half the people of Toronto and Vancouver are anticipated to be of colour.
Visible minority employees also had a higher-than-average turnover rate in 2006-2007: 8.7 per cent of visible minority employees left, compared to 7.8 per cent of all DOJ employees.
Girouard said that in the Law Group, 5.4 per cent of visible minority lawyers left the department versus 4.7 per cent of lawyers overall.
Of those visible minority employees who departed DOJ in 2006-2007, 26 per cent quit; more than one third transferred to other federal departments; and 27 per cent retired.
The DOJ has committed to ensuring that visible minorities do not leave at a rate higher than the rest of its employees.
The department also says it hopes to increase promotions of visible minorities via a January 2007 initiative designed to groom lawyers for upper management. Eight of 20 lawyers in the “Justice Leaders for Tomorrow” program are from visible minorities.
Sources: Department of Justice Employment Equity Report on Progress; DOJ Employment Equity Plan; DOJ Presentation to Senate Human Rights Committee Dec. 10, 2007.
Discrimination surveyed at the Department of Justice
A federal public-service-wide survey revealed that 15 per cent of the 2,525 employees at the Department of Justice who responded anonymously believed they experienced discrimination on-the-job in the prior two years. Of those, 19 per cent said they were disadvantaged due to their race; 20 per cent said they were discriminated against based on their national or ethnic origin; and 9 per cent said it was their colour. (Respondents could identify more than one type of discrimination).
Eighty-two per cent of those who complained of discrimination identified their superiors as the source of the problem, while 60 per cent identified co-workers (respondents could identify more than one source).
The 2005 survey also disclosed that 41 per cent of the 248 visible minority employees at DOJ who responded did not feel they were fairly classified in their current group and level, as compared with others doing similar work. This compared to 34 per cent of white employees who felt unfairly classified.
Forty-eight per cent of visible minority respondents said they did not feel they could initiate formal redress procedures (grievances, rights of appeal etc) without fear of reprisal, as compared to 40 per cent of DOJ employees who were not part of a visible minority.
Eighty-six per cent of visible minority respondents said that overall, DOJ does treat them with respect, versus 12 per cent who said they do not feel respected by their employer. There was an almost identical response from non-visible minority respondents: 88 per cent positive and 11 per cent negative.
Source: Public Service Human Resources Management Agency of Canada, Public Service Employee Survey 2005.