Georgina Calvert-Lee, Senior Counsel, discusses recent FT article on the use of Non-Disclosure Agreements
For us as discrimination lawyers, it’s heartening to start 2019 with confirmation that the #MeToo movement is continuing to prompt change – in this case, in our very own profession. It turns out that both the official regulator (the Solicitors Regulation Authority) and the trade association for solicitors (the Law Society) are concerned about the level of sexual harassment and discrimination that persists in law firms, and also the Non-Disclosure Agreements (NDAs) that firms use to deny public knowledge about the settlements they reach with mistreated employees. We have represented more than a dozen women who have faced discrimination at major law firms and know how far the profession still has to go.
The news of continuing scrutiny by the SRA and Law Society comes from the Financial Times (“Non-disclosure agreements alarm solicitors’ watchdog’, 3 January 2019), which says that the SRA “could send 25 cases [of sexual misconduct] to the [Solicitors Disciplinary] Tribunal” next year. It has already given strict warnings to lawyers that using NDAs to conceal evidence of discrimination at their own firms could be a serious regulatory breach. The Law Society is also about to issue new guidance on how lawyers should employ NDAs.
We have been fighting successfully on behalf of lawyers, bankers and business executives whose careers have been derailed by discrimination for more than a decade, including against major Magic Circle and Wall Street firms. In one case, female black associates found themselves systematically shunted into second-class work with poor promotion prospects, and besides that faced a numbing variety of insults and sexual come-ons. In another, the firm’s practice manager found herself the target of repeated insults about her attractiveness and weight from the firm’s senior partners -- including those charged with promoting the firm’s diversity. Both firms started by fighting back ferociously but were acutely sensitive about their reputations – and ultimately concluded that a settlement protected by an NDA was a smart investment for them. Our clients saw value moving on quietly too. Lawyers are a conservative bunch on the whole, they don’t want to rock the boat – either as defendant or claimant. Our clients felt their complaints mattered not only for themselves but by quietly making things better at their firms too. Now NDAs are no longer the default option, it is becoming increasingly possible to achieve substantial awards and internal reforms without the defendant expecting secrecy in return.
The Law Society’s new guidance reminds us all – lawyers, complainants and law firms – that resolving a discrimination complaint may well include a public component – not every detail, but at least the fact that the defendant acknowledges it needs to do better. It is hard to be against turning past misconduct into a lesson for the future that should improve work for everyone.