© 1995 Karen Selick
 The Latest Taboos
An edited version of this article first appeared in the November, 1995 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 The Latest Taboos

The latest tragi-comedy to appear from the Law Society of Upper Canada is its guidelines for lawyers on how to conduct articling interviews.  Is it possible that real lawyers actually wrote this thing?  It's so full of contradictions and non sequiturs that I wouldn't trust any of the draftsperdaughters who penned it to write up a shopping list, let alone a will or a contract.

On page two, for example, we're told it's forbidden to ask students any questions which would elicit information about their disabilities.  Then on page five we're told, "It is a good idea to ask all applicants (not just visibly disabled applicants) what accommodation, if any, they would need to meet the job requirements."  Well, heck, if I ask them that, won't they naturally have to spill the beans about their disabilities?

We are also forbidden to ask questions that would elicit information about other personal characteristics, including sex and ethnic origin.  Unfortunately, most people's names give away this top-secret info.  I guess when we advertise for students to send us their resumes, we'd better instruct them to indentify themselves by their social insurance numbers only.  Oops, wasn't there talk of making that illegal, too?

Then there's the part that says the purpose of the interview is to give potential employers a chance "to assess whether the candidate has the requisite skill, knowledge and dedication to fill the position available" (emphasis added).

Yet the list of forbidden questions includes all inquiries about the applicant's child-rearing plans.  Okay, we all know the law says we can't discriminate against women because they might get pregnant.  It's a ridiculous law, even by the standards of anti-discrimination laws.  Pregnancy is not an unexpected affliction beyond a woman's control.   It's simply a lifestyle choice, just like being a lawyer is.  Unfortunately, the two lifestyles often conflict.

What amazes me is the Law Society's hypocrisy in suggesting employers have a fair chance to assess an applicant's dedication to the position when we can't ask about this very important aspect of someone's life.  It's downright dishonest to imply that family plans never have any bearing on people's dedication to their jobs.

It's also anachronistic, paternalistic, and anti-individualistic to assume that being asked such questions will automatically place all female applicants at a disadvantage.

Some women may not want kids.  Some may intend to give birth and return immediately to a 50-hour work week while their husbands or nannies stay home with the children.  Others may intend to stay home for nine months after each birth and work only part-time in between.  That's a big range in dedication to the practice of law, in my view.  Women who place priority on their careers should have the opportunity to tell us their plans and avoid being lumped in with women whose priorities lie elsewhere.

There may be firms who can't afford a full-time employee but would welcome a part-timer.  Women with children would fit in perfectly.  Why can't employers ask about this and sort out the people who meet our requirements from those who don't? 

Another question on the sample list of untouchables is "Would your wife be happy living in Ottawa?"  Most firms hire students with a view to hiring them back as associates.  If a student has no roots in that town, and the spouse has a good job and family ties elsewhere, the couple probably won't end up staying.  Why should we be forbidden from preventing these costly mismatches before they occur?

Another inexplicable taboo is the question "What clubs do you belong to?"  Maybe the fear here is that someone might--Heaven forbid--belong to a club that denotes their ancestry or ethnic origin.  For years this country has poured money into multiculturalism programs designed to make hyphenated Canadians feel proud of their origins and "ordinary" Canadians respectful of the hyphenated.  Don't we ever expect this policy to pay off?  Will members of minority groups never feel proud enough to proclaim their ethnic identities?  How do we know we haven't already reached the stage where interviewers are so impressed by the achievements of minority groups that they favour, rather than disfavour, them?  Some firms may already have a large Ruritanian clientele who would welcome being served by a Ruritanian lawyer.

Finally, the Law Society gives employers this ominous advice:  "Do not interview applicants on your own."

The reason?  "A panel of at least two interviewers is likely to reduce the possible incidence of discrimination."

Heck, no.  If discrimination among employers is as rampant as the authors of these guidelines seem to think, then having two interviewers would double the possibility of discrimination, not reduce it. 

Ironically, this may be the one piece of advice worth taking.  In a world where gynecologists won't examine patients without a nurse present and university professors won't meet with students alone in their offices, maybe it's time lawyers started protecting themselves by having witnesses present, too.

Fortunately, though, the average articling applicant seems to have a better grip on reality than the people who wrote these guidelines.  Most students have the common sense and self-confidence to talk freely about themselves even as we interviewers sit there mute, terrified of transgressing against the guidelines. 

When word gets around that volunteering information gives applicants the edge, will the Law Society try to forbid that too?

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June 11, 2000