Just over a year ago, Shaanaz Gokool, a woman of colour and CEO at Dying with Dignity, wrote a letter to her board of directors of the Canadian nonprofit. She presented a list of grievances, including pay equity (her predecessor had been paid more despite a narrower range of responsibilities) and ongoing experiences of systemic discrimination that undermined her ability to do her job. The pay equity issue was eventually resolved—but the systemic discrimination issues, which Gokool found to exceed federal and provincial human rights code thresholds — remained. Gokool requested a third-party mediation so that she, and the enterprise, could resolve the issues and move on in a positive way.
Soon after, the head of the Board’s human resources committee requested a meeting – Gokool thought to kick off the long-awaited mediation process. Instead, three board members showed up at her office and said, “You’re fired.” They slid an envelope across the table containing the paperwork, handed her a box for her things and coarsely ushered her out the door which made Gokool feel like she was a military grade threat. When she stopped to comfort a close colleague who, after hearing the news, was sobbing in her office, one of the board members attempted to block Gokool’s path.
“I really believed the organization was going to fulfill its commitment to mediating. I was surprised…it was abrupt…it was very shocking.”–Shaanaz Gokool
A few months later, a new CEO, a white woman, was hired as Gokool’s replacement.
To this day, the board denies any wrongdoing. So much for dignity. Hello trauma for all.
A year later, Gokool has not been able to find employment in her field. She believes it’s because she now has reputation as whistle blower, a troublemaker, an untouchable.
The nonprofit, the board clearly failed to treat their living employees with dignity. As for governing with care via a social justice lens or in accordance with their own stated “person-centered code of conduct,” The Dying with Dignity board, even if on safe legal grounds, gets a total fail.
Unfortunately, Gokool’s experience is far from unique.
Set Up to Fail
There is a profound lesson here for founders. Most startups and their advisors ignore what is now one of the most important steps in the creation of a new enterprise — crafting meaningful and enforceable organizational bylaws.
But guess what? Times are a changing. Social justice is now a global concern. Forget shareholder activism. Today’s stakeholder activism demands your bylaws protect human rights and fight systemic racism — with increasingly loud voices. Failing to listen could sink the reputation of your enterprise along with access to funding, talent, government contracts and customers. And you could well be slapped with a human rights lawsuit.
Need more convincing?
Consider the impact on the Green Party of Canada when they recently hired an Executive Director who had a history of sexual harassment related allegations against him. During his several years on the leadership team of Engineers Without Borders (EWB) (#aidtoo), Prateek Awasthi also participated in IWB executive team efforts to discredit and orchestrate retaliation against whistle blowers. Former EWB employee Chelsey Rhodes broke her nondisclosure agreement in 2019 and created an online space for other victims to connect and come forward. About 90 people expressed support and 35 additional incidents were reported. Aakhil Lakhani, another former EWB employee who was sexually harassed and silenced, also broke their nondisclosure agreement in early 2019 to call out Awasthi’s conduct. Still the Green Party, while under the leadership of Elizabeth May, hired Awashi in May 2020. Several Green Party leaders and staffers protested his hire. Two staffers quit. Party members threatened to leave.
The Green Party’s Federal Council’s (board) response to the outcry: maintain their position that he had learned from his past mistakes and, well, all that was in the past.
Those harmed disagree, vehemently. His misconduct still impacted their lives. Many had not yet healed. Chelsey Rhodes, who filed her grievance seven years ago, organized a recent GoFundMe campaign to help Lakhani with their legal costs associated with breaking their silence, an example of feminist solidarity.
All this raises an important question. Who gets to decide when it’s ok to exonerate past behavior? The perp? Or the victims? And how much did anyone learn given the uproar from past victims and the Green Party’s stubborn defence of their hire?
The Green Party’s constitution and bylaws outlines a clear fiduciary duty to advance social justice, but its Federal Council gets a fail on follow through and implementation. It’s not enough to market progressive intentions, the governing body has to act in alignment with those values and be clear about interpreting them — who will the board protect, the organization or the people the organization serves?
Another social justice organization, Equal Voice, faced similar fallout after firing three women of colour –initially hired to increase diversity then fired for speaking up about oppressive practices. The national nonprofit, which promotes women in politics, later struggled to keep funders, four directors resigned, and even supporters called into question the rationale of organization’s entire mission. Equal Voice bylaws make zero reference to social justice responsibilities although the goal of the nonprofit is to advance equality.
In August, LiisBeth called out the government funded nonprofit incubator Futurepreneur for its bungled response to a complaint of racism levelled against one of its volunteer mentors. Did their conduct follow rules in their bylaws when it comes to social justice issues? Hard to say. Unlike our other examples cited here, their bylaws are not available online via a Google search.
Underlying all these cases is a problem of governance, namely, out of touch and/or ignored bylaws. And that leaves enterprises purporting to advance social justice doing the exact opposite – casting out whistle blowers as troublemakers instead of embracing them as solutionaries to advance their cause.
Why Entrepreneurs Need To Get Their Bylaws Together
I work with hundreds of entrepreneurs and founders. Few understand or appreciate the importance and role of bylaws.
Bylaws are essentially your house rules — backed by the rule of law. They are the heart of your organization. They tell investors, stakeholders, customers and employees how you really show up in the world. They lay out what you see as your duty of care and the quality of fiduciary conduct you expect from directors.
They are more powerful than any website mission or diversity and inclusion statement. And they work to align staff conduct policies (which are often more progressive) with director conduct expectations.
But too often, bylaws are bare bones, written in haste and deliberately kept short. Lawyers routinely advise founders to do so because bylaws are harder to change later due to the consensus building required. Deferring the development of contemplative bylaws saves a startup time and money. And many will argue that badass bylaws, ones that demand accountability beyond minimum legal requirements, will make it harder to entice directors to join your board.
But template bylaws and laisse-faire attitudes towards them reflect classic patriarchal standpoints.They protect directors, not enterprise stakeholders.They focus fiduciary duty on money, power and efficiency. In recent years, more progressive organizations have amended their bylaws to follow the ESG (Environmental, Social and Governance) standards, which gives a nod to the environment (do no harm) and corporate social responsibility (CSR), which is primarily about giving back to a community, not doing what is just in your organization.
And it doesn’t go nearly far enough in throwing off the shackles of systemic oppression.
Why Bylaws Need a Feminist Frame
It’s time to move past governing like a patriarch to governing like a feminist. And this means reconsidering how power is distributed, centering the concept of care, and articulating a commitment to social justice.
Yes, this applies also to enterprises with a founder/director of one. Un-incorporated sole proprietors would also do well to consider these issues.
The first step? Acknowledge that we live in a white supremacist, patriarchal, colonial and neo-liberal capitalist society, hence, so are the bylaws such a society spawns. Accept that it’s no longer acceptable to perpetuate these and other oppressions fueling inequality. And move, embracing guidelines for better conduct.
The next step is to boldly commit to change and consider the following:
- Centre care and healing as a key fiduciary responsibility: Add an expectation of care and dignified treatment of all stakeholders, especially survivors of oppressive treatment as a result of your enterprise’s actions. Duties should also include working to help those unintentionally harmed by hosting a healing circle, funding trauma counselling and sponsoring meaningful anti-oppression training.
- Make clear your committment to advance social justice: Incorporate a commitment to meet or exceed Employment Standards, pay equity and the Human Rights Act. Most bylaws say something general about following the laws of the jurisdiction. But making compliance explicit sends a clear message.
- Offer the Right to Be Heard: Update language regarding the right to file grievances, request independent third-party mediation, and survivor support — especially when the grievance relates to a harassment or human rights issue. Consider appointing an independent ombudsperson.
- Clarify and restrict the use of nondisclosure agreements: Sometimes these are appropriate and serve all parties. But when it comes to rights violations, silencing someone from talking about trauma experienced under your watch is akin to cutting out their tongue. It also forestalls healing for all. There is no plainer way to say this: Stop this practice. Work to offer healing to all parties involved, even after a formal relationship is severed.
- Reconsider the distribution of power: Boards are beginning to ensure diverse representation, but should also consider diversity of roles. Too often boards operate like aloof Kings and Queens in the Game of Thrones. Sure, they source input from staff who have lived experience running the day to day, but afford them little formal power to see their concerns addressed or ideas adopted. Establish voting seats for key staff, beneficiaries and/or customers. Diversity of roles incorporating lived experience along with distributed power will strengthen your organization’s ability to make wise decisions on tricky issues.
- Make your bylaws accessible and transparent: Post them on your company’s website. Make it clear what your company expects of its directors. Articulate them in clear accessible language. Invite stakeholders to review bylaws and comment before ratifying. By the same token, stakeholders — clients, partners, allies, beneficiaries and staffers — need to know board bylaws and play a part in holding directors accountable. Never seen them? Ask for them.
- Own your good, bad and ugly: If you as the founder or board makes a mistake, don’t hide. Come clean. Tell people. Explain how you are working to fix it. And share what you learned. Futurepreneur gets points on this one.
- Adopt zero tolerance: Make it clear: Your enterprise will not accept any board candidate with a confirmed history of sexism, racism or human rights violations. Period. Do your homework. Many bylaws openly “cancel out” directors with bankruptcy declaration histories (an indicator of being a poor money manager). Enterprises who work with vulnerable populations require police checks. A socially progressive startup should not tolerate a record of misconduct on human rights issues.
- Extend duty of care to include next generations: Consider including the Indigenous “Seventh Generation Principle” in board decision making to acknowledge that what we do today impacts future generations. This principle is often thought of in context of our relationship to mother earth. But it also applies to the relationship between the sexes and entire peoples – Indigenous, BIPOC, and migrant communities — for the benefit of future generations. Include a “reach out” principle, making it a fiduciary duty to forge meaningful connections with those harmed by our collective past. Chamber of Commerce member?. Sign up and support the Women’s/Black/LGBTQIA Chamber of Commerce as well, and articulate board support for aligned activism (such as Black Lives Matter or TheLEAP).
Still need more convincing?
At the recent Social Values conference, Stephen Nairne, Chief Investment Officer of Raven Indigenous Capital Partners, an Indigenous-led and owned financial intermediary, told the audience this: “Your enterprise will be called to account. We have to learn how to heal it when breached and potentially even reorganize to maintain their core purpose under radically changed circumstances.”
Or put another way, if you are not taking stakeholder activism seriously, rethinking your bylaws, or taking care in crafting new ones, you are screwing your investors, stakeholders, and community. Not to mention the future.
Be the change? Fuck that. Get out there and lead the change.
Contributor’s Bio: pk mutch (she/her) is a white, cis top end Gen X serial entrepreneur, feminist, street journalist, consultant and educator who lives in Toronto and enjoys getting from place to place by bike. pk mutch is also the founder and publisher of LiisBeth Media and Eve-Volution Inc.
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