 |
| Jo-Anne Stark |
I fear that the “blame and shame” game seems to be alive and well in our legal and justice system. I had a client tell me that there is no justice, no accountability and no apology for people who bravely step forward to report harassment within an organization. It’s only about keeping it secret, protecting the organization and making sure the victim disappears quietly. She felt like the legal system was not interested in justice for her and that she felt shamed throughout the process as we mediated her settlement. As a lawyer, I wanted to be able to defend the system, but to be honest, I could clearly see her point! What can we do to support victims of abuse and harassment when they report wrongdoing?
In recent years, the use of non-disclosure agreements (NDAs) has become increasingly prevalent in legal settlements involving claims of harassment and abuse. This usually prohibits the victim from speaking publicly and even privately to family or a therapist about details of the incident. Meanwhile, the perpetrator is able to continue their behaviour without consequences. There is a growing movement calling for an end for the use of NDAs in these cases, which effectively perpetuate a culture of abuse.
Testimonials from victims of abuse and harassment that have been silenced by NDAs offer evidence that the system is out-of-balance; that the wealthy and powerful continue to protect their own, whereas victims are forced to re-build their personal lives and careers while being forced to lie about what happened — for fear of being sued.
It’s not right. It’s not what we should be supporting as lawyers. And many of us know it.
In a landmark vote, lawyers from across Canada vowed to help stop the use of non-disclosure agreements to silence victims and whistleblowers. The vote took place at the Canadian Bar Association’s annual general meeting on Feb. 9. In my resolution — which passed overwhelmingly — I outlined how the widespread use of NDAs protects abusive employers and organizations; at the same time, NDAs harm victims of harassment and discrimination, rendering them unable to speak about the abuses they’ve suffered.
It seems that lawyers are ready to own up to their role and to stand by efforts to change things for the better — although it’s curious why the support has been so overwhelming.
Many lawyers have simply always used NDAs, without giving them much thought or even considering ways to protect the privacy of the complainant without causing further hardship. Perhaps it is also because lawyers — especially those who are juggling family responsibilities while practicing law — have often been on the receiving end of harassment? As lawyers, we are expected to fight hard for our clients, but many lawyers are sent a strong message that they are expected to silently accept abuse and bullying in their own workplace. Those who speak out often find they are silenced too.
When I began the practice of law over 30 years ago, I was the only female lawyer in the firm. It didn’t come easy — and I’m a tough cookie to crack! Even if you stand by the principles of fairness and invite employers to treat you equally, the reality is that if there is any imbalance of power, you will be systematically isolated and silenced for pointing out even the most obvious injustice. NDAs are effective at the moment because other workplace colleagues who have not signed one are complicit in the cover-up — “let’s not rock the boat!”
Maybe the #MeToo movement has made it more acceptable for lawyers to step out of the shadows and decide it is not okay to use NDAs to protect those accused of wrongdoing. And if lawyers can become a part of the solution instead of being part of the problem, it’s a start.
I think we all agree that it would be much better to work with organizations that support those that have been wronged than to be a part of a system where harassers and abusers are allowed to move about from one organization to the next, their dirty secret hidden while new co-workers are victimized!
Lobbying is ongoing to introduce new legislation to end the misuse of NDAs across Canada; lawyers are now focussing on protecting their clients’ interests — for example, using a one-sided confidentiality clause to protect the privacy of the victim, not one that demands silence about the perpetrator in exchange. New data (Speak Out Revolution, 2023) shows that almost 30 per cent of people who decide not to make a formal complaint do so because they anticipate being told to sign an NDA and don’t want to. If we as lawyers want to enable victims to speak out and seek justice, we have to end the abusive use of NDAs. Get involved and learn more at Can’tBuyMySilence.com.
Jo-Anne Stark, B.Comm., J.D., CLC, is the founding president of the non-profit Legal Coaches Association and author of Mastering the Art of Legal Coaching. Find her on LinkedIn.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law 360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.