Diversity and inclusion: in-house perspectives and challenges

“Being the ‘first’ can be challenging, scary and lonely”

First-generation citizen. First to go to college. First to go to law school. First attorney in the family.

When speaking with diverse attorneys over the years, I have found that many tend to be familiar with multiple ‘firsts’. While those firsts are huge accomplishments that most are proud of, we sometimes forget all the other implications that accompany them. In the legal profession in particular, it is important that we recognise these and what they tell us about diverse attorneys.

Being first generation from another country comes with various challenges. To use just one as an example, there may be language barriers to overcome. Growing up in a household where the language that you speak at home is not the language that you speak in school can be a struggle. Parental involvement may be difficult when parents or guardians do not speak the same language as educators. We often praise celebrities and politicians for being able to speak more than one language, but we are less impressed by the children in immigrant households who grow up multilingual.

Being the first to go to college can also present hurdles. I remember the difficulties that I had just navigating the application process. I had to figure out what schools to apply to, how many to apply to, how to go about securing financial aid and how to fill out a Free Application for Federal Student Aid. My parents supported me, but this was new territory for all of us. As much as they wanted to help, I had to figure a lot of it out on my own.

Being the first to enroll in law school, things did not get easier. I recall the summer after my first year going to an event hosted by the local bar association for new summer associates. One of the first speakers stood up and joked that if you had trouble securing a job, you could always join your dad’s firm. Most people laughed, but I remember discussing the comment with some of the other minority law students afterwards. For some, they were on the path to becoming the first attorney in their family. Although it was simply a joke, it stuck out because it said something about the profession that we were entering. It was a reminder that while we were exploring new grounds, we were competing with classmates who were walking a well-worn path with an experienced guide.

Let me be clear, the goal of this is not to downplay the experience or hard work of any attorney; we each have our own journeys and face our own struggles. Instead, I only want to acknowledge the often-unrecognised achievements of so many minority attorneys. Being the ‘first’ can be challenging, scary and lonely. It takes courage, perseverance and strength to navigate that path. It is important that we celebrate these achievements and recognise the qualities necessary to accomplish them.

José Bautista is associate legal counsel, intellectual property at Abercrombie & Fitch.

“It is down to everyone to facilitate an environment where people can be their true selves”

It is widely accepted that diversity and inclusion (D&I) should be an essential part of any company’s strategy. Studies have shown that a diverse and inclusive workforce, among other things, facilitates engagement, innovation and creativity, more effective problem solving and decision making, and in turn leads to reputational and economic gains. But behind the buzzwords and financial incentives, it is vital not to lose sight of what D&I means and why it is so important. Afterall, the business case is unlikely to be the reason that employees want to get involved in D&I initiatives in the first place – for many of us, it is a matter of principle.

It is sometimes said that “diversity is being invited to the party; inclusion is feeling comfortable enough to dance”. While a company may be responsible for hiring a diverse workforce and providing a platform and the resources to encourage inclusivity, it is down to everyone to facilitate an environment where people can be their true selves and be valued for it. I first got involved in D&I initiatives (LGBTQ+ in particular) after hearing the statistic that 62% of LGBTQ+ graduates go back into the closet when they first enter the job market. This fact, combined with a perception (albeit an increasingly outdated one) that the legal profession has a tendency towards tradition, really stuck with me. No one should be made to feel that they need to hide who they really are, especially at work, where we spend so much of our lives.

I feel inspired to work for an organisation where individuality is championed and where D&I is not only fundamental to the core values of the business but is reflected in its key product – the content that it creates.

NBCUniversal’s nine employee resource groups – which include OUT (one of corporate America’s oldest LGBTQ+ and ally groups, founded in 1986), the International Cultural Awareness Network, the MyAbilities Network (working for the betterment of conditions for those with varying abilities) and the Women’s Network – have a combined worldwide membership of more than 25,000 people and the ultimate aim of ensuring that employees can bring their full selves to work every day. For us in-house lawyers, there is also the International Legal Diversity Committee, which comprises staff from a range of seniority levels and works to further D&I values specifically within the legal function; recent activities have involved providing unconscious bias training, raising awareness of hidden disabilities, participating in community outreach programmes and holding employee pipeline events. An important focus for the committee is to encourage individuals from diverse backgrounds to pursue a career in media and entertainment law, so that the field may become more diverse over time.

One of NBCUniversal’s key mission statements is to “create and deliver content so compelling it entertains, informs and shapes our world”. Indeed, media and entertainment companies whose main source of business comes from content creation are in an extraordinary position to influence the depiction and perception of underrepresented groups. From Will & Grace (US prime-time TV’s first gay male lead character in 1998) and Queer Eye For The Straight Guy (first broadcast in the United States in 2003, long before the recent revival) to Brokeback Mountain (widely considered Hollywood’s first same-sex love story, 2005) and The Danish Girl (portraying the true story of trans pioneer Lili Elbe, 2015), NBCUniversal and its businesses have been responsible for significant turning points in the acceptance of LGBTQ+ characters in TV and film. Behind the camera, leadership and development programmes target diverse talent through initiatives for budding journalists, writers, directors, actors and producers, in order to break down traditional barriers for underrepresented communities to enter the industry.

Not every business has the platform to reflect D&I values in its output so overtly, but there is a responsibility on companies to try to shape and inform the world in any way that they can, no matter the industry.

Tobias Hawksley Beesley is legal and business affairs at NBCUniversal and a committee member for OUT and the International Legal Diversity Committee at NBCUniversal, as well as IP OUT as part of IP Inclusive.

“It can feel exhausting to have the same conversations over and over”

Diversity is discussed 2 million times a day in the United States. Clearly, I just made that number up, and I have no clue if it is remotely true, but sometimes I feel like I discuss it that much. As a diverse attorney and advocate for D&I, it can feel exhausting to have the same conversations over and over. And honestly, I am tired of talking about it. But I understand that it is necessary. We have to highlight the issues. But then what?

You may be thinking: “But these conversations are making an impact.” Arguably, yes, conversations do have an impact, but not enough. According to the American Bar Association (ABA), in 2007 women made up 30% of the legal profession. In 2017 the percentage rose to 35% – a measly 5% increase in 10 years. Looking closer, the ABA’s April 2019 data also shows that women make up nearly 46% of law firm associates, but only 22.7% of law firm partners and 19% of equity partners. What is more, only about 27% of general counsel at Fortune 1000 companies are women. So, while there is an increase in the number of women entering the profession, we are not reaching the highest levels.

The picture is even more bleak for racial and ethnic minorities, which is the space in which I identify. Black/African American and Hispanic/Latino citizens make up about 13% and 18% of the US population, respectively. Yet collectively, they represent only 8% of active attorneys according to a 2017 ABA survey. The number is even smaller for Asian Americans. Obviously, there is a lot of room for improvement. While there is no simple solution to change these numbers overnight, there are some things that we can start doing, rather than just talking.

First, examine who is leading D&I at your law firm or company. Is it only those in underrepresented groups? If so, this needs to change – right now. Only those with the most privilege can break up systems of oppression. For meaningful change, D&I efforts must be led by those in the majority – white, Christian, heterosexual men. While they did not create the problem, they have the power to fix it. We need them.

Second, advocate for and mentor diverse attorneys. This includes being mindful of the varying layers of diversity. I do not support hiring unqualified candidates, but hiring considerations should extend beyond an Ivy League education and BigLaw experience. Although there is nothing wrong with either, there are a lot of exceptionally qualified diverse attorneys without these credentials, including me. I lead the trademark team at a Fortune 500 company and yet some people reading this would not consider my CV if it crossed their desk. Luckily, I had managers who not only gave me an opportunity, but also mentored me and advocated for my development and advancement. Everyone should learn from their example and make sure they do not miss out on an Adraea.

So, yes, we must continue to talk about diversity, but let us also be it.

Adraea M Brown is director, legal – trademarks and brand protection at Harley-Davidson.

“Opportunities must eventually provide a seat at the table”

Diversity is not simply about gender or race, it is about diversity of thought, experience and perspective, all of which foster diversity of ideas. The more diversity that you bring to the table, with people who think differently, approach things differently and can offer unique solutions to the same problem, the better the end result is going to be. This is because you are exploring a variety of options and ideas instead of focusing on only one. When you embrace any kind of diversity, gender diversity as an example, you open up diversity more broadly and unlock its full value.

The global IP industry is making progress on gender diversity. But two things need to happen in order for us maintain this course. First, we must continue to recognise that it is not just patents driving revenue, job growth and innovation, and ultimately creating value. Far from it. Other IP rights, including copyright, designs and trademarks, bring tremendous value to companies and their employees, as well as the economies in which they operate. In fact, intellectual capital, which includes trademarks and other IP rights, has emerged as the leading asset class. According to Ocean Tomo LLC, the S&P 500 market value of these intangible assets grew from 17% in 1975 to 84% in 2015. The representation of women in those IP sectors and the opportunity to continue advancing these women in leadership will grow as the C-suite focuses more on intellectual property and recognises its value.

The other thing that needs to be prioritised is our focus on meaningful opportunities that lead to success and advancement. People often hone in on the numbers (eg, the number of women represented in a particular workforce or industry). While that is important, to fully realise the value that women can deliver and the success that they can achieve, we need to create opportunities that are real and substantive, whether that is access to capital or particular kinds of work assignments. The key is that these opportunities must eventually provide a seat at the table, where women’s voices will be heard. This should be a priority across the board, from corporations to law firms to the court system. There is always room to improve opportunities for women generally and for women in intellectual property in particular. This is how we can foster D&I and leadership for women in our industry.

D&I has long been a priority for INTA. The number of women in leadership positions in the association is notable; since 2000, 10 INTA presidents, including me, have been women, and currently, five of the six officers of the Board of Directors, 15 of the 30 members of the board, and 31 of the 70 committee chairs and vice chairs are women.

This year INTA launched the Women’s LeadershIP Initiative, a project that aligns with the association’s long-term commitment to D&I. Among the goals of this initiative, INTA aims to:

• foster strong leadership skills for women in the IP field and empower them to advance in their careers;
• address ways to reverse underrepresentation and close gaps in career development and leadership for women in intellectual property; and
• help women to unlock their full potential as brand professionals.

This comes at a pivotal time, when we can contribute tremendous momentum to global efforts to address gender equality in different business sectors, including our own. Our industry and intellectual property itself have much to gain.

Ayala Deutsch is the 2020 president of INTA and executive vice president and deputy general counsel at NBA Properties.

“The power of diversity is what happens when the lights are off”

The legal profession has made progress with D&I through the development of affinity groups, diversity committees and programming for its employees, and it is encouraging that companies understand the business case for diversity. From my experience, diversity efforts are best when practised through purposeful, routine and intimate interactions; therefore, companies should also appreciate the ‘people’ case for D&I – impactful diversity is personal.

I was speaking on a panel a couple years ago about D&I and a non-diverse speaker from another company said that she does not look at colour or race when making hiring decisions. She explained that her colour-blind approach is fair because the best of the best will always rise to the top. While I respect her perspective, it has not been my experience that diverse attorneys have fair footing for even entering the pool of candidates for hiring. Diversity is about inclusion; however, you cannot have diversity unless you include diverse people. Making a conscious decision to recruit diverse candidates can drive equity and is important for the routine practice of diversity. Be an intentional owner of your company’s diversity message by considering the make-up of the team that provides legal services to your company or firm.

There are many ways to practise intentional diversity in a personal way:

• A law firm’s hiring partner makes a conscious decision to look for diverse talent at a historically black law school.
• A non-diverse associate makes a conscious decision to give a diverse attorney meaningful trademark prosecution and enforcement matters.
• An in-house director of a trademark group insists that their law firm assign a diverse attorney to participate in a meaningful way in a trademark ligation matter.
• A deputy general counsel assigns a diverse counsel to represent the department in a large, company-wide project.

I am convinced that each of these intentional acts provided the access and legal experience that led to my ability to grow within law firms and in-house teams. Without these acts, I wonder if I would be in my current role as assistant general counsel at the Blue Cross Blue Shield Association (BCBSA). I am a proud employee of BCBSA. My company’s CEO, Scott P Serota, signed the CEO Action for Diversity and Inclusion pledge in October 2019. The association believes that diversity is about encouraging and enabling all employees to draw fully on their talents and skills for the benefit of BCBSA objectives. BCBSA believes that diversity improves the organisation’s ability to cope with change, expands creativity and increases worker retention. Further, diversity improves the organisation’s relationships and partnerships with the communities in which we live, recruit and operate.

The powerful effect of practising diversity is amplified when decision makers are champions of diversity in all aspects of their daily practice – this occurring outside of a planned diversity event, training session or seminar. When non-diverse attorneys regularly practise diversity, the culmination of these intentional actions can lead to great opportunities for the company, the law firm and the diverse attorney. In my experience, diverse attorneys are ready for these opportunities. They understand that they must carefully navigate the unwritten rules of the road to navigate barriers to inclusion. The diverse attorney already knows that they need to wake up earlier, work harder, make fewer mistakes, speak articulately and be very aware of their professional appearance in order to address unconscious biases and become a trusted and valued member of the team. While the tenets of many diversity programmes embrace the value of different cultures and perspectives when approaching legal work, the unfortunate reality is that many diverse attorneys understand that the path to becoming a trusted and valued team member is through understanding and adopting mainstream approaches, actions and appearances. Intentional diversity practices can help to change this for the better.

It is difficult to predict how and when the trademark industry will know success in its D&I efforts. Rather than focusing on the finish line, I encourage trademark teams to focus on their current efforts and consider diversity during routine interactions with diverse attorneys and intentionally considering diversity when hiring staff, assigning work, evaluating work product, and promoting the work and efforts of diverse professionals. The power of diversity is what happens when the lights are off, when there is no podium or conference room, nor any continuing legal education credits. Intentional diversity is practised between non-diverse and diverse attorneys in a personal way. Our industry succeeds when a non-diverse partner is comfortable taking a first or second look at an applicant from a non-traditional law school. Our industry succeeds when a non-diverse attorney makes a conscious decision to have coffee or lunch with a diverse attorney – just because.

Debra Hughes is assistant general counsel at the Blue Cross Blue Shield Association.

“Discussions around the topic confirm that there is still a lot of work to do”

Intellectual property may be a professional field in which diversity is more advanced than elsewhere. But to make it fully inclusive, we need to avoid complacency and keep up the fight.

I believe that diversity is only the first step to achieve a fair and balanced working environment. In this context, ‘diversity’ does not just mean gender, but includes differences in race, ethnicity, age, socio-economic status, physical ability, sexual orientation, political beliefs, religious beliefs and other ideologies.

Like countless others, I have experienced feeling excluded based on a specific aspect of my life, with two being the most prominent: gender and ethnicity. I am aware that many think that the gender topic is outdated or obsolete but my personal experience tells me that is not the case.

In December 2019 the World Economic Forum stated that it would take 257 years before men and women reach pay equality. In addition, there was only a 2% increase in the number of women in senior roles compared to the previous year.

It is true that in the field of trademarks, there are many women in management positions. However, there appears to be a stark difference between in-house settings and law firms. In many countries, female partners are still a rarity. Further, exclusion is not limited to barred access to higher positions, but also prevalent in day-to-day work.

I have personally received compliments for my skills as a good host while giving out snacks, with comments including: “I knew Latin women were good at this.” When my statements are too direct, I am asked to reign in my “female Latin temper”. When showing disagreement, I am told not to be emotional about business matters. And my private life and the existence of children seems to be a regular topic of interest. Similarly, many of my female mentees still talk about workplaces where disrespectful and dismissive male behaviour is translated into men having a decisive and direct leadership style, whereas the same behaviour among women is dismissed as being oversensitive, too emotional or unprofessional. Still, I have asked myself: could I be wrong? Could this just be a coincidence?

I decided to reach out to female IP professionals via a short survey to get a sense of the importance of gender equality today. The respondents covered different ages, ethnicities, geographical locations, socio-economic statuses, roles in companies or law firms, and ages, among other things.

The questions were:

• Do you believe that gender equality has been reached within the IP sector?
• Do you feel comfortable speaking about gender equality at your workplace?
• Do you think that it is still necessary to speak about/fight for gender equality?
• Do you believe that taking action in favour of reaching gender equality is easy? If your answer is no, please specify why.
• If there was one thing you could change with respect to achieving gender equality, what would it be?

In total, 99 female IP professionals responded to the survey. While not a statistically representative number, the responses certainly provide a basis for discussion:

• 42% of respondents believe that gender equality has been reached in the IP sector.
• 82% feel comfortable speaking about gender equality at their workplace.
• 97% think that it is still necessary to speak about/fight for gender equality.

However, the figure that most caught my attention related to the last question: 75% of survey participants believe that it is difficult to take action in favour of reaching gender equality. Most respondents argue that equal treatment for all is not considered relevant by many, be it for cultural, religious or simply structural reasons.

Despite many moments of exclusion, I feel that diversity is more advanced in intellectual property compared to other industries. Nevertheless, the responses and discussions around the topic confirm that there is still a lot of work to do.

The advantages of diversity are evident, as countless scientific articles and analyses have demonstrated that diverse teams deliver better results. However, simply hiring or setting up diverse teams is only a start; you still need to ensure that each team member experiences an inclusive environment. Here comes the challenge. Inclusion can be mandated from the top, but changes in behaviour will not simply happen because it is commanded. If top managers openly pursue inclusion, this can have a positive effect on the entire organisation.

Finally, inclusion is a personal matter and depends on each and every one of us acting inclusively and speaking up when witnessing non-inclusive behaviour. Many of you may be thinking: “I always act inclusively! That goes without saying!” I would challenge that assumption. We all have biases and often enough we are not aware of them. I encourage you to take the Implicit Association Test to learn about your unconscious biases.

Throughout my career, I have had the privilege of being surrounded by men and women who have supported my willingness to develop. I work at a company that takes diversity very seriously and that strives to achieve a true speak-up culture. To achieve further progress, women need to develop joint actions and a vehement discourse that allows them to counter discriminative behaviours; in this context, fighting discrimination in the workplace goes hand in hand with the universal and perpetual fight against any type of oppression.

Let us ensure that future generations feel comfortable speaking about all types of differences in the workplace and that they can bring their true selves without fear.

Myrtha Hurtado Rivas is head of global trademarks and domain names for Novartis International AG.

“Disability issues are something of a poor relation when it comes to equality initiatives”

Disability issues are currently something of a poor relation when it comes to equality, diversity and inclusivity (EDI) initiatives. That is not always true, and some companies and firms are great at breaking down barriers for disabled people and carers. But on the whole, these issues remain somewhat neglected and shrouded in stigma – which is as bizarre as it is unacceptable, given that approximately one-fifth of working-age adults report as having a disability (and who knows how many more are disabled, but conceal it for fear of stigmatisation or discrimination). To quote from recent research reports by Legally Disabled – a fantastic project exploring the career experiences of disabled people working in the legal profession – disability is not a minority issue.

Let us clarify exactly what we are talking about here, as the term ‘disability’ encompasses a wide range of visible and invisible conditions. To refer to statute wording (a bad habit that we lawyers cannot resist), under the UK Equalities Act 2010, a person has a disability if they have a physical or mental impairment which “has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”. The list of conditions that can fit this bill is long and varied – diabetes, severe allergies, epilepsy, hearing impairment, anxiety, asthma and speech impediments, to name but a few. The negative effects that these conditions can have are equally varied and invariably stem more from the way in which society operates than from the medical diagnosis itself. Is it the physical disability that causes someone to be excluded from a conference, for example, or is it the failure of the organiser to take simple steps such as checking the venue’s accessibility and including a remote dial-in? We have so many tools available to level the playing field, we just need the awareness and motivation to use them.

Employers would do well to get proactive about mitigating the negative effects that disabled people are experiencing – not just for that warm fuzzy feeling or to satisfy legal obligations, but because there is a strong and obvious business case for attracting the most talented recruits and enabling all employees to work at their best.

The wisdom in enabling employees has been illustrated by recent events. When March 2020 presented businesses with the sudden, unexpected challenge of having to close their offices indefinitely, those not set up for flexible working were propelled into a mad scramble to get hardware purchased, software set up and policies in place for work to continue. Meanwhile, firms and companies with progressive flexible working policies reaped the benefits of their inclusive approach.

So, what can you do to get active in this area? There are so many ways to make a difference, and it does not matter whether you are an employer or employee, or disabled, a carer or wanting to act as an ally for those that are; there is a role for everyone. The main thing is to appreciate that this is an important issue and to take a first step in addressing it. Any or all of the following are great places to start:

• Update your EDI, accessibility and flexible working corporate statements, strategies and policies, and make them visible. They say a lot about the values and ethos of your business; wear them loud and proud.
• Start a disability network or appoint ambassadors to join an existing network (eg, IP Ability) and promote its support offering within the company.
• Train managers on disability issues. Having a supportive and informed manager can make the world of difference and often sets the tone for the culture within a team. There are some great training sessions and resources available out there.
• Read and make use of existing resources. Keep an eye on IP Ability’s webpage as we have recordings of various informative webinars and will soon go live with a long list of useful resources to help IP professionals become more disability-confident.

With reduced resources and added pressures, all firms and companies are finding it harder to focus on EDI. But beware the false economy of neglecting EDI issues: they affect every rung of the corporate hierarchy of needs and the simplest actions and changes can make the biggest differences. Our current circumstances, and the recession that the United Kingdom is hurtling towards, make it more important than ever to optimise staff effectiveness and simultaneously ensure that disabled people are not disproportionately affected by the squeezes that lie ahead.

Francesca Rivers is a solicitor (research and innovation) for Cancer Research UK and co-lead of IP Ability.