Nikki Gershbain talks about the change she has helped lead in D&I at McCarthy Tétrault as Chief Inclusion Officer detailing what has worked in her firm, and how a comprehensive, integrated, action-oriented and evidence-based approach to embedding inclusion in the workplace topples both structural and cultural barriers.
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Charlene Theodore:
Hello and welcome to the Work that Works Podcast. I'm your host, Charlene Theodore. Before I begin, I want to acknowledge that I'm recording this episode from the Dish With One Spoon Territory. I'm grateful to the original owners for taking care of this land, and I recognize the treaties that govern it. Knowing that our listeners span the country and are tuning in from other areas with their own treaties and unceded territories, I encourage you to continue learning more about the indigenous history in your community. It is important history and a story that continues.
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Charlene Theodore:
Creating workplaces that really work for people means that we have to move from theory to practice, and that kind of bold movement has to start somewhere. Someone has to be first. What can those pioneers of the profession who are blazing trails and taking on new positions teach us about our own important first steps towards true workplace inclusion? I'm OBA President Charlene Theodore and this is the Work that Works Podcast. When it comes to fostering meaningful equality, diversity and inclusion in the workplace, we all have a role to play.
Charlene Theodore:
It's an undertaking we all need to be invested in, but sometimes we need the benefit of a good director to get started. Luckily, we have that in our guest today. In 2019, Nikki Gershbain was hired for a rare but growing and much needed executive role in Canadian legal industry, chief inclusion officer at McCarthy Tétrault, an OBA partner firm. She is now at the helm of a critical culture shift that combines equity with social responsibility.
Charlene Theodore:
In integrating and formalizing the firm's national EDI policies and initiatives, pro bono in community impact programs, she is spearheading and synchronizing substantive change across the organization, change that serves as a shiny example to other workplaces. For those of us seeking to create workplaces that work for everyone, well, Nikki has some notes. An award-winning change maker, I can think of few better advisors than Nikki to help us figure out the very best ways to transform good intentions into genuine action. Nikki, welcome to the podcast.
Nikki Gershbain:
Thank you, Charlene. It's so lovely to be here.
Charlene Theodore:
Let's start. I would like to begin by asking you about your role at McCarthy's. It's a role that's still somewhat unique in our profession. Why did the firm create the role of chief inclusion officer, and what drew you to it?
Nikki Gershbain:
McCarthy Tétrault has really always been a leader when it comes to diversity and inclusion. We were the first firm to have a chief inclusion officer. We created an industry leading work allocation program over a decade ago. We have very progressive policies in place to ensure that women are not differentially impacted by parental leave, and so on. But the reality is, despite this commitment, a few years ago, our leadership really began to recognize that whatever it was that we were doing, it wasn't moving the dial.
Nikki Gershbain:
Not as quickly as we wanted it to be do or needed it to do. There was also a recognition that despite the fact that we had done some really good around gender equality and had made some important advancements, we needed to expand our focus to include an emphasis on all equity-seeking groups. The other thing that's interesting is prior to my arrival at the firm, our chief inclusion officer was actually an equity partner.
Nikki Gershbain:
The person in that role, who had always been very dedicated and committed, there are a long line really fantastic people who filled this role prior to me, they were also running a very busy full-time practice. I mean, they were essentially doing D&I work off the side of their desks. When our last chief inclusion officer was elevated to the bench in 2018, the leadership of the firm essentially took that opportunity to look for a dedicated person who could focus full-time on D&I. In terms of what drew me to the role, there were really three things.
Nikki Gershbain:
The first was an opportunity to work with our leadership, and in particular, our CEO Dave Leonard and our National Practice Leader Barb Boake. They articulated to me a very clear vision when it came to inclusion, and I was really impressed by their authenticity. Second was the opportunity to build a leading edge D&I program, which is something that I hadn't seen in the Canadian legal market to date. It was clear to me that what I was being asked to do was not going to be window dressing and has felt like a really meaningful challenge.
Nikki Gershbain:
And then finally, I felt like I was being given an opportunity not only to make a difference at one Bay Street law firm, but really in the profession more broadly. I thought to myself, if I could help to create something really groundbreaking here and move our firm right into the center of a broader conversation around equity, diversity and inclusion, that that would be a pretty incredibly way to be able to spend my time.
Charlene Theodore:
Well, it sounds like a big agenda, but you've been doing fabulously so far. Aside from having a broader impact on equity and diversity in the profession, you were hired to develop and lead what you've referred to as leading edge D&I program. Can you give us a little more detail about your work and how it may stand apart from other approaches to D&I?
Nikki Gershbain:
For sure. As you've said, I really like building things. I really like the challenge of having to start something from scratch and make it really impactful. We created this program that we call Inclusion Now. We branded the program because we wanted to send a message that it wasn't going to be hodgepodge of D&I initiatives. It would be a structured, comprehensive, and evidence-based strategy that would really integrate inclusion into every aspect of who we are as a law firm and what we do.
Nikki Gershbain:
In a nutshell, Inclusion Now is McCarthy Tétrault's action-oriented approach to attracting, but much more important, supporting, retaining, and advancing black, indigenous and people of color, members of the LFBTQ2S+ community, people with disabilities, and women. And let me be clear, many firms have started a conversation about EDI and are creating really fantastic initiatives that are moving the dial. I think it's really important that I make that clear that I see that.
Nikki Gershbain:
I have a number of very talented incredible colleagues and counterparts in the profession whom I admire very deeply and I have learned a great deal from, and nor do I think that we have solved any problem. We're just at the beginning of our journey. But I do think there are a few things about our Inclusion Now program that are unique in the market, including the fact that we've taken both a structural and cultural approach to inclusion.
Nikki Gershbain:
We've really created a broad plan to identify and extricate where there maybe unintentional bias in our talent management policies and procedures and to create a deeply inclusive workplaces where everyone feels seen and valued. We've also taken great pains to make sure that we're grounding this work in leadership. At McCarthy Tétrault, there's not only no question in my mind, there's really no question in anyone's mind that our leaders are authentically committed to this work, because we talk about it all the time.
Nikki Gershbain:
The Inclusion Now program has a very, very high profile at our firm, and it's really clear that this objective, this program, and these values are coming right from the very top of the house. What does this mean in concrete teams? It means that we're treating D&I like a top business priority. Our leaders are chosen and evaluated based on their commitment to these values, and every leader in our organization is expected to play a meaningful role in the program. I've mentioned our CEO a few times.
Nikki Gershbain:
He's really an incredible ally. He deserves so much of the credit for advancing this agenda, and he takes every opportunity to speak out in support of our program, but he also chairs our Inclusion Now council. He's responsible at the end of the day for the success of our program. And that council meets regularly and includes other seniors leaders from across the organization, which I think is significant in terms of the impact it can have. I also think that the fact that my role is at a C-level does make a huge difference.
Nikki Gershbain:
It means that I'm a member of the leadership team, right? I mean, I work cross-functionally within the organization, and I work to make sure that the inclusion lens is brought to bear on all aspects of our business. And then the last thing I think that makes Inclusion Now unique is that you would really be hard-pressed to find another law firm that has invested more resources than I think McCarthy Tétrault has into D&I. We have a standalone Inclusion Now office with a dedicated supported team.
Nikki Gershbain:
We have a senior legal advisor on indigenous initiatives, which is another first in our profession. We know that you can say as much as you want about inclusion, but if you're not going to make the commitment, and making the commitment includes investing serious resources into moving the dial, you're not going to be making a difference.
Charlene Theodore:
You mentioned a couple things in your response, Nikki, that I think are really critical for substantive change in our profession from a race perspective. We've made huge strides for gender equality in our professional, but that hasn't always benefited women of color. And even for white women, we still have many improvements to make.
Charlene Theodore:
I think that a thing such as having your inclusion mandate in whatever form it is, whether it's a partner, whether it's staff, having it at the C-level, having it well-resourced financially and with the actual staff resources you need, and the addition of advisor on indigenous issues are really key to really turning another corner with regards to race and intersectionality with respect to women.
Charlene Theodore:
I'm just wondering, aside from these changes, which I think are critical, our listeners think are critical, what's your opinion on how approach to diversity and inclusion has changed over time in the profession? What are we doing now that's different to what we were doing let's say 15, 20 years ago?
Nikki Gershbain:
Yes. I mentioned earlier that Inclusion Now is about attracting, but, more important, supporting, retaining, and advancing "diverse talent," which is a problematic term in and of itself, but we use it as shorthand. I think there was really a time when diversity and inclusion programs were all about representation. I mean, it was really a numbers game in a lot of ways. It was how many diverse bodies can an organization get in the door.
Nikki Gershbain:
But the problem, as you know, with treating diversity as a box checking exercise is that that door ends up being a revolving one, right? If diverse people aren't included, if they're not set up for success, I use that phrase a lot, I'm sure I'll use it another 10 times over the course of this discussion, eventually the writing is going to be on the wall for them. They're not going to have the same skills as other lawyers within the organization, not because they aren't just as talented, but because they didn't get the same access to career enhancing opportunities.
Nikki Gershbain:
And so they're going to leave the organization. I think that for diversity to be sustainable over time, a D&I program needs to focus not on representation. I mean, expanding the pipeline obviously is great and we're doing that work as well, but really the focus could be exclusively on retention and you would end up having a more diverse workplace because people would flock to an organization that is meaningfully inclusive.
Nikki Gershbain:
This means creating inclusive behaviors, policies, and programs that ensure that everyone in the organization can achieve their full potential. What do I mean by this? Well, at our firm, some of the activities that we're currently working on to advance these goals include rolling out unconscious bias training, so that all of our people understand that the subconscious ideas and stereotypes that we all bring to the table actually tangibly impact our decision-making in a workplace.
Nikki Gershbain:
I think unconscious bias training has gotten a bad rap in some ways in recent years where people say, "Oh, it doesn't do anything." Well, it doesn't do anything if it's a once and done initiative. But if it's delivered in an organization in order to understand unintentional bias, but then a number of policies and programs are developed around it to put what you've learned into action, it's extremely effective.
Nikki Gershbain:
Let me give you another example, which is our work allocation program, a program that's designed to make sure that work at our firm is being allocated to students and associates objectively. In other words, that it's being allocated based on availability, based on the need to develop certain skills, based on interests, and not based on affinity or some other kind of bias. It's not about, "Oh, this young associate really reminds me of myself when I was a young lawyer." It's about, "I've got this really terrific file. Who has time to work on it? And who needs to develop this particular skillset?"
Nikki Gershbain:
We're also doing other things like we're creating a mentorship program that we're calling Mentorship Plus, and we're actually launching this in a couple of weeks. This is a model that we designed and are piloting for our self-identified diverse associates in Toronto, where we are going to be pairing them with one of our client, so somebody very senior in-house, in order to provide them with access to meaningful networking opportunities, as well as specialize professional development and skills development programming that they can participate in as a cohort.
Nikki Gershbain:
I have lots of examples of things that we're doing that we're proud of. For example, we're very proud of a new summer program that we've created for 1L students, for black and indigenous students in 1L, to try and get at some of the historical underrepresentation that we see not only in the profession, but within our own firm.
Nikki Gershbain:
And then finally, I'll mention, we are working on a number of policy initiatives designed to move the dial, which includes a trans and gender non-binary inclusion initiative, an anti-racism policy, a reconciliation action plan for the firm, and then an audit of our physical accessibility and the accessibility of our technology. All of that is just to say, it really does take a lot more than just growing the pipeline. It's about putting these principles in place within the organization to actually level the playing field.
Charlene Theodore:
What I tell our listeners over and over again in these podcast episodes is any one of those initiatives that you just said that McCarthy is doing are great on their own. But if you really want to answer the question as to why are we not getting results from our past approaches, because these are things that people were working on in some way before the crisis of the summer.
Charlene Theodore:
I think our listeners and people in management positions in law firms and in-house need to understand that it takes several tools working together strategically to actually reap the rewards of a more inclusive workplace. Now, Nikki, I know you and I have talked about this offline over breakfast several times before, and we both agree that diversity and inclusion should not be viewed as solely an HR responsibility.
Charlene Theodore:
Can you expand a bit on why we should avoid this narrow lens and perhaps how practically we can make D&I across departmental opportunity and priority throughout organizations, whether they be small, medium, or large sized firms or in-house legal departments?
Nikki Gershbain:
It really goes back to what you said a moment ago, which is this stuff is really complicated. There's not going to be any one approach that is a panacea or a cure all. If you locate, if you isolate the people who are responsible for D&I in just the HR department of an organization, as important as the talent piece is, what I think you're doing is leaving on the table the fact that inclusion is much more than just about talent. It's a leadership issue. It's a cultural issue. It's a business driver.
Nikki Gershbain:
D&I really has to be approached not as an add-on, but an organizing principle for every single area, department, and function in the organization. The work that D&I professionals do is not easy, if I may just so say for a moment.
Charlene Theodore:
Well, you're talking to a workplace lawyer, so I agree.
Nikki Gershbain:
Right. Exactly. You know what I'm talking about.
Charlene Theodore:
Yeah.
Nikki Gershbain:
We're moving boulders uphill in many cases, and we're facing resistance, and we're facing pushback. I don't think that folks who do D&I can have the level of influence that they need within an organization if they are isolated in one area, as I said, right? I think that you need to be sitting around the leadership table. Having said that, you asked about small or medium sized organizations.
Nikki Gershbain:
I do appreciate that all of this, like all of this investment of time and energy and resources into advancing inclusion can be a lot more challenging for smaller organizations or for smaller firms. Not everybody is able to invest in staff or to find a large budget for let's say professional unconscious bias training or whatever it might be. I do think that you can still do the work if you follow the core principles. You just have to do it on a smaller scale and according to a different timeline.
Nikki Gershbain:
I definitely think that any organization, no matter what size, can create an environment where people feel valued and where the leadership of that organization is declarative about their commitment to equality. You could be an organization of two people and you can do that.
Charlene Theodore:
Exactly. I mean, that really hit the nail on the head about what this podcast is about, because one of the reasons why we're speaking to you today and we've talked to our brilliant guests that have come before you is we're not saying to do it Nikki's way. We're not saying to take McCarthy Tétrault's budget and follow exactly what they did. But the more and more we have these conversations with people who have really, really turned the corner in some of the areas that we want to focus on, the more and more you'll see a pattern.
Charlene Theodore:
There is a template to doing this well, and that's why we go beyond the conversations that we're having on this podcast. For our OBA members, we offer those resources, the companion program, along with the podcast so they can take away the lessons and the tools and the template really of the discussion that we're having and apply it to their own workforce. So yeah, I think that's a really, really important message. Nikki, you're a part of the queer community leading in your profession.
Charlene Theodore:
I am a black female lawyer for those that are listening and may not know. And I'm sure we have the same experience in workplaces or even social or cultural spaces that we're in. In addition to our work, we also gladly do equity work and education work and community work. Every organization I've been in if there's a lawyer's community. I've been involved in CABL. You've been involved in several organizations as well. We do it happily, and we do it because we enjoy it, and we understand its connection to a bigger purpose.
Charlene Theodore:
However, there are a lot of organizations that, whether they be law firms or otherwise, they tend to limit that work to side of desk work. And not only side of desk, but side of desk work that is born exclusively by the people it's trying to help. The black associate in the firm will get the equity work and may not complain, will likely never complain about doing this work. I've never met a black associate that's doing any EDI, whether it's side of desk or otherwise, that doesn't enjoy it.
Charlene Theodore:
But I feel and I think our listeners feel that there certainly needs to be a balance, which is just in line with what we were talking about earlier with regards those roles in the C-suite, having those roles in the management table, having them as part of your overall strategic initiative. How do organizations really create that balance? Doing the work to create more inclusive and equal spaces, but ensuring that that work doesn't fall disproportionately, at least, to members of the equity-seeking communities that they're supposed to help.
Nikki Gershbain:
This is such an important question, and I think you've tapped into a really common problem, which is that organizations do tend to assume that it's okay to leverage their diverse talent to advance their inclusion goals. Look at us, we created a committee and we put all of our women and all of our gay and racialized lawyers on that committee. Isn't that awesome? To your point, it is a balance, right?
Nikki Gershbain:
The problem with this approach is that it sends a signal that it's the job of the employees who are most negatively impacted by the barriers within our institutions to fix our workplaces. It's the diversity tax, right? From my perspective, we just can't on the one hand say that inclusion is a priority for our leaders and for our organizations, but then on the other hand, at the same time load up the work on the backs of our most vulnerable employees, people who are already disproportionately burdened just trying to navigate the workplace when there's not an equal playing field.
Nikki Gershbain:
The reality is we all contribute to the culture of our workplaces. Depending on our race or our gender identity or gender expression, our sexual orientation, some of us obviously benefit more than others from the various biases that are baked into the system, right? We know that that's often unintentional. But nevertheless, they're there and they're there very structurally. If we all benefit or if we're all impacted, if we're all part of that culture, then surely it falls on all of us to do the work necessary to refine the culture and remove the barriers.
Nikki Gershbain:
Again, I mean, we talked earlier about how certain principles around doing this work that everybody can adopt and adapt and apply in their workplaces. I think one of them is that it's very important to send the message and to be deliberate about sending the message that inclusion is everyone's responsibility. What we've done is we've tried to design a program that really engages everybody and creates a culture of what we would call active and authentic allyship.
Nikki Gershbain:
This concept of creating allies and having other people support and assist with rolling up their sleeves and doing the work. We've done something that I think is kind of interesting, which is we've created what we call action groups. We have a pride action group, a gender equality action group, a race action group, and inabilities action group. We were very deliberate when we created these groups that they were not be affinity groups.
Nikki Gershbain:
Not because we think it's not important to have spaces in a workplace where you can talk to other people about shared experiences and challenges, those spaces are really important. We have those spaces in many informal ways within our organization. If any employee were to come to us and say, "Look, I want to create something a little bit more formalized, and I want some resources and some support," we would be 100% behind it.
Nikki Gershbain:
But we chose this approach because we thought it was important to make sure that everybody in the organization was working with us to activate our values and to activate the program that we had developed. Essentially, these action groups are responsible for raising awareness around the barriers that certain groups face within our organization and within the profession and society more broadly. The groups work intersectionally. That's very important to us that we take an intersectional approach, but they also do work on their own.
Nikki Gershbain:
They've been absolutely staggeringly successful. We have 540 partners, associates, students, and staff who have volunteered for one of these action groups, which is basically a third of our organization. It's amazing. That's a lot of straight, white, cisgender men who have put up their hand and said, "Inclusion matters to me and I want to be part of this work." Again, it goes back to another one of these principles that we're talking about, which is leadership.
Nikki Gershbain:
If it wasn't for the vocal and deliberate support from our leaders, I don't think that these groups would be nearly as successful as they are.
Charlene Theodore:
Yeah. Maybe we can get into that a little bit more just to explain to our listeners what the difference is between the two for those who may have not heard those terms before. I think what employers are really facing is saying, "Look, we want to make these changes. We want to work as a management team across the organization, but we also want to make sure that our employees have a space to be heard when we're doing our work, but also have a space to just talk among themselves as a community, whether that's a community of women of color, the LGBTQ community, the indigenous community, or black community."
Charlene Theodore:
In that context, can you explain, since we're talking about the balance, what the difference is between, for example, your action group and affinity group for those who haven't heard those terms of before?
Nikki Gershbain:
For sure. An affinity group is sometimes also referred to as an employee resource group, and it's basically a collection of employees within the workplace who share a certain experience, whether it's an affinity group that's organized around gender or race or mental health is an area where we're starting to see affinity groups pop up.
Nikki Gershbain:
It's basically an opportunity for people who might have similar backgrounds and experiences within the workplace to get together and to talk and to plan events and to provide the advice to the leadership on how to change policies and procedures, to provide feedback on various initiatives and programs. These are groups that fill a really, really important function within a workplace. I'm definitely not suggesting that one model is better than another.
Charlene Theodore:
No, but I think that's the group. If you have those groups in the workplace, that's the group we're identifying as saying that's where you need to look up for the balance. That's the group where you have to find the balance between involvement and, like you said, giving advice to the leadership team, as opposed to downloading all the work onto that group. That's the trap to avoid.
Nikki Gershbain:
I agree completely. I think in a lot of organizations where there are affinity groups, I think you'll find that those are groups that are planning Black History Month and planning pride events.
Charlene Theodore:
Exactly. Exactly.
Nikki Gershbain:
Doing International Women's Day. It's like what ends up happening to your point about balance is these folks are busy enough. It shouldn't just be people who are members of equity-seeking groups who care enough about these issues to organize around them. In fact, I would go so far as to suggest that people who don't experience barriers within the workplace have a particular obligation to do this work.
Nikki Gershbain:
The other thing I think is important about not placing the burden of this work on people who identify as diverse is it also interestingly makes a whole bunch of assumptions about everybody in the organization. It assumes that "non-diverse" people or members of the dominant groups are not interested in learning or in being allies. It assumes that we even know who is diverse, when in fact a lot of diversity is hidden. We don't talk enough about class, about generational status, about religious belief, or invisible disabilities, and so on.
Nikki Gershbain:
There are many challenges that people may have worked to overcome in their careers or are still working to overcome that we really know nothing about, because they're not organized around the usual issues that we're talking about, the social conditions of race and gender and sexual orientation and so on. I think it also fails to recognize that we don't know why people necessarily want to participate in this work. I mean, the fact that a third of our employees at McCarthy Tétrault have volunteered for these groups, we've touched on something.
Nikki Gershbain:
We've hit a nerve. Action groups by contrast, we kind of made them up, I think, although I'm sure they're not unique. But what we designed them to be are basically working committees where we've invited people to volunteer to help us really bring our strategy to life and also to be engaged in this work. Because I'm one person. I can't do all of this on my own. So it's also about leveraging a lot of really talented and passionate people to do the work with me. I can give you an example. People talk to me about why they want to be involved in this work.
Nikki Gershbain:
A number of parents in our organization, a number of lawyers and staff have told me that they joined our pride action group because they want to learn how to be better allies to their queer and trans and gender nonconforming kids. Again, you just don't know what leads people to this work. Another great example is our gender equality action group, where we have tons of men who have signed up to do this work. It's about time, right?
Charlene Theodore:
Yes. Yes.
Nikki Gershbain:
In fact, one of the areas that we're exploring as part of this group is men and masculinity and how masculine norms in our workplace not only function to hold men back, they function to hold women back as well, or they function to hold both men and women back. We're talking about how do we advance equality for women by tackling gender norms that harm men as well. This is kind of like we're trying to really nuance the conversation and think about it from a number of different angles and tackle it.
Nikki Gershbain:
The men and masculinity piece, the best example of that is parental leave. It's not enough just to tell women, "Go take your parental leave. And when you come back, we'll help you onboard. We'll support you. We'll make sure you get your files back. We'll make sure that you're set up for success." I think we also need to say to men, "Go take your leave. Take your entitlement. Be parents." You're going to be a better lawyer if you're happier at home, but also you're also making it easier for your female colleagues to take their leaves as well. Think about it as an active allyship.
Charlene Theodore:
That's amazing and that's actually the perfect segue into the next question I wanted to ask you. We've talked before about one of your goals is to go beyond gender overall to address the exclusion of all equity-seeking groups. Can you provide an example of your approach to different equity-seeking groups from a strategic perspective within your role at McCarthy's? How, for example, are you working to create an inclusive culture for black and indigenous folks or for members of the LGBTQS community?
Nikki Gershbain:
For sure. Let me give you, as an example, some of the work that we're doing to address anti-black racism in particular. I think a lot of organizations in May after George Floyd was tragically killed and we saw the elevation of the Black Lives Matter movement, I think a lot of organizations, even organizations like ours that were doing work around race and racism, really recognized that there was a lot more to be done and that we needed to focus in particular on the experience of black folks in our organization, in our case, in the profession more broadly.
Nikki Gershbain:
I spoke earlier about some of the structural and policy initiatives we're working on, so I won't repeat that, our work allocation, our mentorship program, our anti-racism policy, and so on. Let me now share some of our thinking around two other approaches that we're taking to inclusion, education and community. On the education piece, we really believe that being culturally competent is critical to not only raising awareness, but normalizing conversations around diversity and inclusion and creating safety around these discussions.
Nikki Gershbain:
Cultural competency, by definition, has to be specific. It's not enough to talk about diversity and inclusion in the abstract or in some high level universal way. We actually have to look at, what are the experiences that different people face in our workplace? What are the experiences and the challenges and the barriers that are particular to different groups? When we're talking, for example, about anti-black racism, we've done a few things.
Nikki Gershbain:
Last April, just shortly after we all started working from home, we devoted one of our race action group meetings to a presentation and a discussion about the differential impact that COVID was having on racialized communities, and in particular, on black, indigenous, and Asian communities. Over the summer, we helped three facilitated collective reading discussions of the book How to Be an Antiracist by Dr. Ibram Kendi, which gave our people an opportunity to learn together and in a safe and intimate learning environment, which we found these sessions to be very, very powerful.
Nikki Gershbain:
We got a lot of really, really positive feedback about them. And then for Black History Month, we've arranged two educational programs. For our English region, we have invited Anthony Morgan, who, of course, is a lawyer and advocate and responsible for the City of Toronto's anti-black racism strategy.
Charlene Theodore:
And also a guest on this podcast.
Nikki Gershbain:
Of course.
Charlene Theodore:
Yeah.
Nikki Gershbain:
That's fantastic. You have all the best people, if I do say so myself. We've arranged for him to come in to do a program on anti-black racism. And then for our Quebec region, we've arranged for Webster, who is a historian and Quebec hip hop artist, to do a program specifically anti-black racism in the province of Quebec, which is kind of its own thing. Again, it comes down to that particularity and the importance of actually locating these conversations and grounding them in real experiences and in real examples and not just having these conversations at a high level.
Nikki Gershbain:
And then on the community side, we know we can't do this work alone, so we're working to build meaningful partnerships with stakeholders. I won't go into all of the different partnerships that we're working on developing or that we have developed. I'll give you a couple of examples. In December, some of our lawyers acted for the Canadian Association for Black Lawyers, for CABL, as part of their first Supreme Court intervention, which was really exciting and went the wrong way, but that's a whole story.
Nikki Gershbain:
We recently announced a very exciting five-year partnership with the Black Female Lawyers Network that includes an investment in the Justice Corrine Sparks scholarships for black female students at Dalhousie. We're doing these things. We're working to invest in different communities for a number of reasons. In terms of the black community, we understand that as a premier national law firm, we hold immense privilege in this country.
Nikki Gershbain:
We know that we have an obligation to help grow the pipeline or black students, something that we haven't done well previously and we're trying to rectify, and to also address structural racism and discrimination, the kind of structural racism that has historically prevented black lawyers from achieving their full potential in our profession. And we're also looking for ways to support and engage our own people.
Nikki Gershbain:
We want our people to know that we're committed to this work, so they feel like when they come to work every day, they're working in an organization where their experiences are valued, and we're not ignoring the fact that there's racism in our society and in our workplace. And look, at the end of the day, if we can become a more diverse law firm, we know that we're also going to attract the best talent and do better work and serve our clients more effectively. That, quite frankly, is good for the bottom line.
Charlene Theodore:
Earlier on in an earlier episode, I talked to the wonderfully brilliant Lily Zhang, and we talked about what I think you've got a great, a magnificent grasp on, knowing the difference between the types of EDI work. Lily and I talked about there are EDI educators, for example, Webster, that you mentioned, who's going to be doing some programming around that. There are EDI strategists who can come at it from a business perspective, perhaps a recruiting perspective, a change management perspective, or all three.
Charlene Theodore:
And then there are EDI trainers who do the unconscious bias training or may do EDI training in some other aspects. What I like about your approach is that you appear to know when to use tools in all three categories. Many firms and in-house legal departments are not in the position to be able to bring someone in-house and devote the resources. That means that many people are going to be hiring third party consultants to do this work. As we've stated over and over again in this conversation, it's complex work.
Charlene Theodore:
Do you have any tips for people out there who are going to be looking for people to help them on their journey in making these workplace culture changes? What to look out for in a third party consultant, trainer, educator, or provider? I personally think the first thing is knowing the difference between the three types of services, service categories, and being able to match that to what your goal is as a firm or workplace. What are your thoughts?
Nikki Gershbain:
I agree. It reminds me of an experience I had very early on at the firm where I was interviewing consultants to see who could come into deliver unconscious bias training. Because to your point, I'm not a trainer. We sometimes make the mistake of assuming that one person can fulfill all three roles, and I don't think that that's the case. I don't think we do in the people, the people who we're trying to educate about these issues, any favors by putting someone in front of them who isn't the professional...
Nikki Gershbain:
I mean, I have subject matter expertise, but pedagogically I'm not a trainer. Interestingly, I was meeting with somebody, a consultant who happened to be a white woman, and one of the things I asked her about was what were her recommendations in terms of how we could go beyond unconscious bias training to identify our unintentional bias, and to also think about cultural competency. How did she integrate cultural competency into the conversation?
Nikki Gershbain:
I remember that her response made me very nervous, because she essentially said that she would provide the cultural competency training around race and sexual orientation and so on. I appreciate that we do have resources to invest in these issues, but we have really made a concerted effort to make sure that the people that we're bringing in to deliver this kind of programming are not only subject matter experts from a conceptual or theoretical perspective, but have lived experience because I do think it's important.
Nikki Gershbain:
I mean, I'm sure I could bring in somebody who would be just fine, who might not be a member of a certain committee, but could talk about the principles let's say of racism and structural racism or the principles of gender inclusion, et cetera, et cetera. But in the absence of that lived experience, you know what, it's just not going to land in the same way. And there's very good reason for that. I'm not saying that lived experience is the same as knowledge, but lived experience informs knowledge very much.
Charlene Theodore:
100%. I think over and above that, I think the combination of lived experience and the education training ability to provide that from an informed knowledgeable place, over and beyond that criteria, everybody is now, including many firms and many of our partner firms, are taking a look at who are our service providers and how diverse are our service providers.
Charlene Theodore:
It's a key principle, I think, that people use in other areas and each remember to bring that principle over when you are hiring for your training, whether it be with regards to unconscious bias, allyship for the LGBTQS community. It's something to definitely keep in mind.
Nikki Gershbain:
I just want to add that I'd like to think I can speak as an ally, but I just can't speak in as informed as a way as other people can. To your point about diversity in procurement, we have clients who are now asking us to provide them with information about the diversity of their teams. They want to know that we are providing opportunities to diverse lawyers at our firm, and they want to know that their teams are diverse and inclusive because we know that diverse teams make better decisions. They're more creative.
Nikki Gershbain:
They're more innovative. They're going to get the job done more effectively. I agree with you. There's no reason why we shouldn't use our leverage and our spending dollars as a firm on making sure that we ourselves are supporting diverse suppliers and diverse vendors. In fact, that's something that we are starting to look at. That's a big project.
Charlene Theodore:
For me, it's a question or a topic of conversation that is probably one of the most important to me. We've talked on this podcast and offline a lot about leadership as a guiding principle. What advice do you have for really ensuring top-down accountability for your strategic plan, the Inclusion Now plan, the mentorship plan, and to ensure the progress is monitored, and that management and staff throughout the firm are really given a mechanism for feedback regularly. I ask this because if we're going to talk about the three categories of EDI work.
Charlene Theodore:
The EDI work from a strategic consulting perspective, I think you agree that this is often a pain point where things may go by the wayside. For example, if it's side of desk work, it's hard to really ensure accountability for a plan, checking in on a plan, set up systems and structures where people can pivot in response to how well your plans and D&I initiatives are going. What advice do you have for our listeners about once you've gotten that great start, really ensuring accountability and keeping that progress going in a sustainable way?
Nikki Gershbain:
My advice is to find ways to really weave accountability throughout the organization. You need to make sure that you've got accountability integrated into your strategy so that you can drive change and measure success. You want to create a measurement plan for the organization, do the benchmarking, develop the metrics, and really integrate this into the expectations you have of your people, and then I think recognize them and compensate them for their effort.
Nikki Gershbain:
One thing that we do at our firm is every year we ask every member of the firm to describe how they contributed to our diversity and inclusion objectives in the previous year. At our firm, we're currently supplementing that by creating scorecards for our leaders, which will give them an opportunity to support the implementation of the plan and to report annually on their progress. Because, as we said before, the reality is one person can't do this work on their own, one office can't do this work on their own.
Nikki Gershbain:
It has to be woven into every level of the organization starting with the top of the house. The other thing when it comes to accountability that I think is important to focus on is the principle of transparency. I think it's really important, if you have expectations of your employees around their inclusive leadership, their inclusive behaviors, you need to also be open and honest with them about where your organization is at on this journey and to be transparent, which is really I think key to our ability to make change.
Nikki Gershbain:
Let me give you an example. Last year, we were approached by The Globe and Mail. They were doing an article on an update to Hadiya Roderique's Black on Bay Street. They were looking at the representation of black lawyers at large Bay Street firms, and they asked us to share our race-based data. In particular, the percentage of black lawyers at our firm. And we did it. We shared that data. And we didn't share it necessarily because we were super proud of what that data reflected.
Nikki Gershbain:
I mean, I don't think we're any better or any worse than most of the other large Bay Street firms, but we did it based on principle, because we knew that it was important to be transparent, to be candid. We were saying, "This is how you drive the needle." For us to then not share the data would have been disingenuous when it came to aligning with our own values around the strategy that we had developed. And then we circulated a document to our people internally. We provided the data to our people, because we hadn't shared it with our people previously.
Nikki Gershbain:
We then went about setting out for them the steps that we were taking to work to eliminate bias, to address structural barriers, structural racism, and to really advance the needle for racialized people within the organization. We saw it as part of our commitment to being transparent and to being candid about where we're at. From our perspective, that was our accountability and not only to the profession, but to our people.
Charlene Theodore:
I think that is two really great examples, number one, of really practical way to weave in accountability and sharing successes and motivation for the overall D&I plan throughout the organization. Because what I've seen in the past is, and I know you have to, is it's side of desk work. And then we see the other extreme where it is like this has been assigned to the managing partner, but there's a bunch of people in the middle that you need. Like you say, you can't do it alone. It can't be the sole job of the chief inclusion officer.
Charlene Theodore:
Whereas you can drive the strategy, you can't execute the strategy alone. Weaving that accountability and those rewards that comes with the execution of the D&I plan throughout the organization in that scorecard is a great way to do it when you're embarking on some of these initiatives like many firms and organizations are just now staring to do.
Charlene Theodore:
After last summer, you will get to a point that I like to call the messy middle, where you've been putting in the time, you've been putting in the energy, you've been putting the resources, and you may see some results, but you're not within less than a year going to see wild or drastic changes. That's when I think that accountability and that transparency and I think what the example you talked about is explanation and communication without equivocation. You were open and honest.
Charlene Theodore:
You were able to talk about your efforts and the ongoing results of those efforts in the context of your overall strategic plan without equivocation. I think that having those among some of your principles in terms of how to keep the engine going on this train that so many have just started are really, really important so that transparency and not having the strategic plan siloed in any one place in the firm.
Nikki Gershbain:
And look, I mean, we shared the data with The Globe. We shared it with our people. And guess what? The sky did not fall.
Charlene Theodore:
This is the point. This is the point we're trying to make.
Nikki Gershbain:
Right? And I think that organizations tend to really hold their cards close to their chest because of a fear that somehow if we acknowledge that we're not where we want to be, that we haven't made the progress we want to make, somehow it means that we failed and that people are going to point to us and say, "You haven't done X, Y, or Z," or whatever it is.
Nikki Gershbain:
The reality is, if you have a strategy that you can point to and if you can point to an authentic and genuine efforts to change things, to move things forward, then I think that level of transparency and that honesty is just really appreciated by people because they can see that you're not perfect, but you're making best efforts to get to the right place.
Nikki Gershbain:
I think that there's something to be said for being humble and for saying, "We are not where we want to be. We are just beginning this journey. We have a lot more work to do. There's more that we can do to be better, but we're trying." If you really are trying and if your people and your stakeholders can see that you are, then I think people will cut you a lot of slack. I mean, it's like life in general, right?
Charlene Theodore:
Yeah. Further to your point about approaching it with humility, whether The Globe or The Star calls you or not, but having I think preset check-in points throughout the organization, how are we doing, let's get some feedback, will I think really inform I think a balance of strategy so there is the longer term goal. There are things that take time, especially when we're talking about pipeline issues, but there are some things that you can intersperse with that that may have more immediate impact for some aspects of your D&I plan.
Charlene Theodore:
By checking in, saying, "This is where we're at. This is where we're going," getting the feedback, you create a conversation loop throughout the years that you're executing your plan so you can be nimble. You can be responsive. The only other thing that I would add that I think is important other than interspersing it throughout the organization and checking in is really celebrating your successes, because there are going to be successes along the way. I don't see enough celebration of that.
Charlene Theodore:
Maybe it is a fear of highlighting something when there is still so much work to do, but even internally. I think it's hard work. It's complex work. And like any other journey, you've got to celebrate your successes, celebrate the wins when they happen.
Nikki Gershbain:
I have to say on the celebration piece, for me, the more satisfying thing about doing this work is the feedback that we get from people within the organization. Our office and our CEO, we regularly receive notes from people telling us how much this means to them, how much it matters to them that we're having these conversations, that we're using our resources and our platform to advance the dial. I mean, I could read you some of these notes.
Nikki Gershbain:
They bring tears to my eyes, because it's so clear to me that it's made a difference in terms of how people show up at work, that their sense of belonging within the organization, their sense of loyalty to the organization. I mean, our people are so proud of this Inclusion Now program. They tell us all the time how proud they are to work for an organization that leads with its values. It's incredibly gratifying to feel like...
Nikki Gershbain:
I mean, law students who reach out to me who say things like, "Somebody was wearing a McCarthy Tétrault rainbow flag pin when I walked into that interview. Before I walked in, I was really, really afraid, and I didn't know if I could be my authentic self. I didn't know if I should be closeted. And the minute I walked in and saw that pin, it was like a light went off and I could just be myself." I mean, it's so satisfying to hear that kind of feedback and that student ended up coming to the firm.
Nikki Gershbain:
He's now going to be joining us as an articling student. Those are small things, but they actually have an enormous impact.
Charlene Theodore:
Impact, exactly. We didn't even get into to measuring impact. So many things we could discuss.
Nikki Gershbain:
Oh my god, there's so much more to talk about.
Charlene Theodore:
So much more to discuss. One of the things you mentioned McCarthy's being a workplace that demonstrates how they lead with their values. Again, the conversation echoes the first episode when Ross mentioned the same thing, and he initiated the four-day workweek and defined benefit pension plan. You've heard the episode with Frankie Wood and Jennifer Gold, and they built their firm around being able to do their best work and really work with their husbands and partners to have a very fulfilling family life.
Charlene Theodore:
They're saying that that's what is attracting not just their clients, but also their employees and articling students that want to work with them. And you're echoing the same thing here. What I love about these conversations, and I thank you again so much for joining us, is that there is a template to it. There is a common thread. I'd love that share and how it connects to the other conversations that we're hearing already. It's really affirming, and it's great to hear that feedback.
Nikki Gershbain:
Let me also just say, I'm sure you have some cynical listeners. We are lawyers after all.
Charlene Theodore:
Yes.
Nikki Gershbain:
Some folks are going to be listening to this podcast and they're going to be like, "A Bay Street leading with their values and leading on inclusion, I mean, come on, give me a break." There's going to be some cynicism. But let me you tell, Charlene, I have been a social justice advocate for 30 years. I'm a member of the queer community. I'm a feminist. I identify politically as progressive. I spent the vast majority of my career advancing access to justice and public interest values.
Nikki Gershbain:
I think I've built up a little bit of credibility, I hope, over the years, and I don't take my own reputation in our profession lightly. It is with pride and confidence that I can tell you that our firm is moving in the right direction and is deeply committed to these values. And again, we're not perfect and change does not come naturally to this profession at the best times, but we're in a good place. I am really enormously grateful to be part of this work, because I think that it is going to move the dial over time.
Charlene Theodore:
Well, I couldn't agree more. I want to thank you sincerely for joining me today to have this very important conversation. As I said, this podcast is all about creating workplaces that work for everyone. What I think we all really want as associates and partners and law firm owners is to be able to provide a space where we can attract the best talent from across genders and race and all other intersections and give them a home to really do their best work for the length of their career ideally.
Charlene Theodore:
There are so many gems and initiatives that we talked about today that I think people can learn from and can adapt to their own organizations and their D&I strategies. I appreciate you sharing, and I'm looking forward to continuing the conversation.
Nikki Gershbain:
Thank you so much. You know how much I admire you and the work you're doing. I love that you have elevated this topic as part of your presidency and your platform. It's really, really important. Thank you so much for this opportunity.
Charlene Theodore:
Oh, you're very welcome. Thanks a lot, Nikki. Have a great day.
Nikki Gershbain:
Thanks, Charlene.
Charlene Theodore:
What can we learn from the leading edge and expansive work that McCarthy Tétrault had undertaken in diversity and inclusion? How can we apply those principles in our own workplaces? As we heard from Nikki, McCarthy's has their own branded program, Inclusion Now. Even if you don't have the resources to launch an initiative of that scale, you can still incorporate a comprehensive, action-oriented, and evidence-based approach to embedding inclusion in all aspects of your operations through a plan that makes sense for your workplace.
Charlene Theodore:
Leaders in your organization must truly be committed to this work and their demonstrable commitment to these values must be clear to all within and outside the organization. When it becomes a top business priority, an inclusion lens is brought to all projects. Remember that attracting, supporting, retaining, and advancing racialized lawyers and staff is about more than box checking or representation. It's about setting those team members up for success with career building opportunities.
Charlene Theodore:
If you don't focus on retention, you'll have a revolving door. Unconscious bias training is not a one and done exercise. Policies and programs need to be developed around it to put what you've learned into action, like Nikki's example of a work allocation program, one that allocates work objectively based on skill development needs and availability, not affinity. Think about how you might enhance your mentorship program.
Charlene Theodore:
At McCarthy's, associates who self-identify that they're from equity-seeking groups are both paired with a client and invited to participate in skills development training as a cohort. Having a plan for diversity and inclusion is critical. However, if your D&I plan solely focus on HR, you maybe addressing the talent piece, but missing out on other integral pieces. This is a leadership issue, a culture issue, and a business driver at every level of your organization.
Charlene Theodore:
Don't impose a diversity tax by downloading the responsibility of fixing systemic barriers in the workplace to those employees most affected by them. Inclusion is everyone's responsibility. Consider whether like McCarthy's your organization will be served by having both action groups, working committees that activate the programs you developed and are open to all, and affinity groups, groups that allow coworkers with shared identities to talk, share ideas, and bring advice to leadership.
Charlene Theodore:
When it comes to education, cultural competency is so important, but it must be specific in order to effectively address the barriers faced by equity-seeking groups. The lived experience of discrimination is unique based on factors such as gender, race, disability, and sexual orientation. To affect enduring change, you need to create top-down accountability and find ways to weave that accountability throughout your organization with an integrated strategy, a measurement plan, benchmarks, and metrics.
Charlene Theodore:
Find ways to recognize and compensate those whose efforts and inclusion are making an impact in your organization. And lastly, keep in mind that transparency. Transparency in terms of how you're doing and building a more inclusive workplace is vital to demonstrating your accountability, both to the profession and to your people. Just because you're not yet where you want to be doesn't mean you failed.
Charlene Theodore:
If you can point to a well-developed strategy and your authentic efforts to get there, people will see your commitment to those values and to doing better. Follow the link in the episode description for additional resources.