A New Picture
The intellectual property (IP) landscape has changed for the better amid a heightened focus on diversity, equity, and inclusion (DEI). But companies and firms are embracing vastly different approaches to achieve the desired results, as Muireann Bolger reports.
While the Mansfield Rule has a certain cache, some brands are taking different approaches to address diversity, equity, and inclusion (DEI).
The Hershey Company (US) is among those brands that have eschewed the Mansfield Rule in favor of devising their own DEI programs.
Angela Wilson, the company’s general counsel, Intellectual Property, said Hershey has focused on equitable hiring, development, and promotions of women and people of color as well as employees identifying as veterans, LGBTQ+, and disabled for more than a decade.
“We are intentional and focused,” she said, on advancing their careers through co-created career plans, frequent performance feedback and coaching from direct supervisors, mentorship, sponsorship, and frequent talent reviews.
Currently, 71 percent or 12 leaders on the brand’s legal team are female, including the vice president, deputy general counsel and assistant secretary, and the chief compliance officer.
“We do not use the Mansfield rule to guide our DE&I initiatives, but instead follow our own ambitious strategic framework, co-created with employees and external experts, to hold ourselves accountable to making a real, long-lasting impact,” she explained. As part of its program, Hershey requires hiring managers to select the most qualified people from diverse candidate pools and demands 50 percent gender diversity and 30 percent “people of color” diversity on hiring slates for salaried roles.
According to Ms. Wilson, the company’s leaders and employees collaboratively created the brand’s Pathways Project, a five-year plan to make The Hershey Company more diverse and inclusive. This involved in-house counsel, outside counsel, and hundreds of employees working with the company’s DEI team to “co-create our enterprise diversity, equity, and inclusion framework,” she said.
“We continue to partner with our in-house counsel, outside counsel, labor economists, and other thought leaders to ensure we understand shifts in candidate availability, setting aspirational yet grounded hiring and representation goals,” Ms. Wilson added.
As a result of these efforts, Forbes ranked Hershey the number one female-friendly company in the world in 2021, and it also ranked number 10 on the DiversityInc’s “Top 50 Companies for Diversity.”
A Different Template
Jean Lee, CEO and president of the U.S.-based Minority Corporate Counsel Association (MCCA), believes brand counsel should adopt a data-focused yet collaborative and supportive approach when addressing their external counsel’s DEI efforts.
To facilitate this, the MCCA last year unveiled a new measurement tool or “scorecard” for general counsel, to assess a law firm’s DEI progress. The scorecard ranks four key categories: demographics, recruitment, retention/attrition, and promotion for women and diverse groups—particularly those from underrepresented racial and ethnic backgrounds.
Ms. Lee called the tool “both customized and comparative, allowing firms to benchmark their personal progress against that of similar-sized firms and the overall industry.”
Giant companies including Bristol-Myers Squibb, General Motors, Macy’s, Mastercard, Microsoft, Nike, Nokia, and Visa, among others, have pledged to adopt the scorecard for their external counsel, she noted.
“A DEI policy is necessary and minimum requirements must be set; otherwise, it will remain lip service. Our focus, as a South African firm, is on broader diversity, to reflect the diversity of the country.”
Nishi Chetty, Adams & Adams (South Africa)
As part of that commitment, signatories ask their law firms to provide their MCCA scorecard, which is then used as a metric to evaluate how firms are progressing in their DEI efforts.
According to the MCCA, it developed the scorecard in response to years of requests from general counsel for a transparent industry benchmark to assess DEI metrics, develop actionable policies, and drive competitive advantage.
Ms. Lee added: “Knowledge is power, and this tool provides us with the data to understand each firm’s journey on diversity, culture, and equity—which is the first step to speeding up that journey. Ultimately, that’s how our profession advances—not through soaring rhetoric or empty promises, but through accountability and concrete action.”
In her view, the scorecard goes further than the Mansfield Rule in terms of its rigorous data analysis and methodology.
“Definitely at ‘a bare bones minimum,’ the rule has put a focus on the importance of diversity within law firms and in corporations. The big question is what’s next? While the Mansfield Rule is good for firms to strive toward, we at MCCA are advocating for much more than that,” she explained.
To try and deliver a similar level of transparency and greater accountability in the UK, Andrea Brewster, founder and lead executive officer of IP Inclusive, created the organization to promote greater diversity in IP after she retired from Greaves Brewster, a firm she had co-founded in 2000.
In her view, positive action including targets and data analysis is vital. “We have to normalize the non-white face on the podium, the wheelchair in the board room, the female voice at the microphone,” she urged.
“Every extra woman we employ and promote is one more role model for other female professionals, one more ambassador to attract new women in, and, importantly, one more defense against our unconscious biases. Otherwise, we will lose out on valuable, talented people as well as the benefits in terms of creativity, versatility, and productivity that a diverse workforce can bring.”
To tackle this problem, IP Inclusive has founded a senior leaders’ diversity think tank and the “Senior Leaders’ Pledge,” which encourages senior figures in brand legal departments and law firms to sign on, with the promise to work alongside more junior colleagues to effect positive change.
New Beginnings
Hogan Lovells International LLP (UK) is also taking a hybrid approach. In addition to adopting the Mansfield Rule, the firm is also a founding signatory of the Race Fairness Commitment pledge, launched by Rare Recruitment (UK) in 2017.
Raphael Mokades, Rare’s founder and managing director, noted that Rare aims to help people from diverse backgrounds develop careers in elite professions, including law.
The Race Fairness Commitment requires participating organizations to make commitments around ethnicity pay-gap monitoring, retention and promotion analysis, unconscious bias training, and anti-racist policies.
“Top law firms have made enormous progress in recruiting graduate classes that are as ethnically diverse as the UK population.”
Raphael Mokades, Rare Recruitment Ltd. (UK)
“Top law firms have made enormous progress in recruiting graduate classes that are as ethnically diverse as the UK population,” Mr. Mokades said. “Achieving the same at management level means nurturing, retaining, and valuing those same classes as they become more senior, and bringing down the disproportionate attrition of ethnic minority lawyers in law firms.”
A Murky Picture
While it is becoming more commonplace in Canada, the UK, and the U.S. for organizations to ask firms for race or ethnicity data, and to increasingly track this data as a means of monitoring DEI progress, the picture gets murkier when you look beyond these areas.
In many countries, including Germany, Italy, Japan, and Sweden, firms do not collect any data on the racial or ethnic identity of their citizens. In fact, it is illegal to do so in some countries such as France and Germany, where only gender diversity tracking is permitted. This stance has drawn the ire of the United Nations, which urged in a 2021 report — Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers — for countries that do not track ethnicity and sexual orientation data to start compiling data to promote better equality.
While there are diversity initiatives and diversity-themed organizational events in other European countries, they are not as systematic and structured compared to the UK and U.S., observed Denise Benz, senior associate, Allen & Overy (Germany).
“It is not as easy for German-based firms to measure the success and progress we make. That is one of the downsides of not being able to implement the Mansfield Rule in the way that it can be implemented in the UK and the U.S.; we can’t track the data and measure their results in the same way.”
This, she explained, means that it is difficult to identify the specific areas that still need to be addressed.
She added that given the restrictions on data tracking, there is inevitably a greater focus on gender diversity in European countries. For example, Ms. Benz has helped launch the German chapter of ChIPs, a U.S.-based nonprofit organization that advances and connects women in technology, law, and policy, and she is also a member of the German initiative, Women in IP, a working group to support and advance female attorneys in her country.
But while firms may not be able to track diversity data relating to lawyers from a minority background, or those who are LGBTQ+ in Germany, Ms. Benz also contends that progress could be achieved in more informal ways.
She noted that the firm conducts regular surveys where all staff members can discuss issues that they face. It also runs unconscious bias training programs, promotes flexible and hybrid working, and has affinity and allyship groups, as well as a mentoring program for law students with a migrant background.
“We are always focused on ensuring that DEI is a natural way of working and doing things. We do not try to put in place rules or reach any percentages.”
Adriana Barrera, BARLAW—Barrera & Asociados (Peru)
“Even without being able to gather the data, such initiatives create a space for members of underrepresented groups to become visible in society and in the legal industry,” Ms. Benz said.
While criteria such as racial/ethnic background or sexual orientation cannot be tracked in France either by any organization or public institution, progress can still be achieved, according to Guylène Kiesel Le Cosquer, partner, Plasseraud IP (France).
Emphasizing the validity of more informal ways to effect change, she credited the firm’s membership in several professional organizations with helping the firm secure greater DEI.
For example, she noted, as a member of the French Association of Diversity Managers, participants regularly discuss and exchanges views with the diversity actors of member organizations, including companies, institutions, public organizations, local authorities, and associations on best practices in the field of diversity.
The firm also hosts the Annual Meeting of the Women in IP Law Committee of the American Intellectual Property Law Association in France to promote awareness of diversity issues—in particular, to inspire women in the field of IP and help them achieve their potential.
As evidenced by these activities, Ms. Le Cosquer enthused, “Our firm is strongly committed to equal opportunities for all, whether it be gender, ethnicity, sexual orientation, education, national origins, or disability.”
She pointed out that 40 percent of the firm’s partners are women, well above the national levels in the UK and the U.S., and half of its 14 offices are managed or co-managed by women.
A Fluid Approach
In fact, some law firm leaders espouse a more organic, less structured approach, and deliberately eschew the imposition of targets.
For example, BARLAW—Barrera & Asociados (Peru) is the first IP boutique in that country to be led by women and to feature an all-women partnership—although Managing Partner Adriana Barrera describes the firm as “naturally diverse.”
“At BARLAW, we are always focused on ensuring that DEI is a natural way of working and doing things. We do not try to put in place rules or reach any percentages,” she insisted.
While she acknowledged that initiatives such as the Mansfield Rule are “significant and may help to promote DEI in the legal sector,” she has not yet been tempted to adopt these types of initiatives in her own firm.
“We measure everyone according to their skills and capabilities for the position they are applying for, and we are open to having diverse people,” Ms. Barrera said. “We live and breathe diversity, inclusion, and equality.”
She added: “There should be equal opportunities for any person interested in any position. If they have the right skills, then they should be hired regardless of gender, ethnicity, or background.”
“We have to normalize the non-white face on the podium, the wheelchair in the board room, the female voice at the microphone.”
Andrea Brewster, IP Inclusive (UK)
In Ms. Barrera’s view, while the Mansfield Rule may address inequality, she is concerned that its adoption could potentially lead to “hypocritical hiring” decisions—for example, hiring people based on their gender or ethnicity rather than their ability. This, she argued, could lead to negative outcomes for both the candidate and the firm.
She is also unconvinced about the merits of linking financial compensation to DEI efforts. Rather, she believes a softer stance can also achieve results.
“I do not think that bonuses and compensation should be linked with DEI efforts, as I feel that it stems from a true effort from leaders to support and promote DEI. I insist that leaders must take DEI issues as part of the vision and goals of the company,” she explained.
In contrast, Ms. Brewster and Ms. Lee both “absolutely” insist that bonuses and compensation should be linked more to DEI. Noted Ms. Brewster: “Compensation is key. In this way, firms will start to change or will be forced to.”
Difficult Legacies
Other firms have taken a markedly different approach, finding it necessary to impose their own stringent quotas in response to their country’s history and legacy of racial inequality.
Nishi Chetty, partner at Adams & Adams (South Africa), said the firm recognizes “the importance of redressing the legacy of inequality in South Africa and the importance of advancing diversity and inclusion in society.”
“A DEI policy is necessary and minimum requirements must be set; otherwise, it will remain lip service,” she said, noting, “Our focus, as a South African firm, is on broader diversity, to reflect the diversity of the country.”
To meet this goal, Ms. Chetty explained, the firm has established mechanisms designed to enhance its ability to attract, develop, and promote persons of color, with a focus on female candidates, into the partnership in all practice areas.
Further, to promote and sustain these efforts, it has created a DEI Committee which engages regularly on aspects such as recruitment and development, mentorship, partner relations, transformation initiatives, gender equality and inclusivity issues, and the specific challenges experienced by these professionals.
Initiatives include a scholarship program for students of color and a policy to ensure that at least half of all professional promotions, including to partners, are attorneys of color, she continued. In addition, the firm aims to achieve an 80 percent intake of trainee attorneys of color, she said, and over the last six years it has achieved an intake of 68 percent, with approximately 80 percent females.
In the Middle East region, women have fought and still fight a tough battle for greater equality. But change is underway. The United Arab Emirates ranked first in the Arab World, and 18th globally, in the “Gender Inequality Index” (GII) of the United Nations Development Programme’s Human Development Report 2020, for its commitment to advancing women’s rights. It moved up eight positions from its previous rank of 26 in 2019.
“The question is how to get these candidates to stay long enough to ensure they make partner or another leadership position?”
Jean Lee, Minority Corporate Counsel Association (MCCA)
According to Mariam Sabet, senior associate, Dubai International Financial Centre (UAE), the Middle East has seen a marked improvement recently when it comes to female representation in the workplace.
“There are various initiatives and organizations in the region that promote gender equality with missions to rebalance the corporate ecosystem with adequate female representation,” she explained.
One of the most significant developments in the UAE has been the mandate passed by the Securities and Commodities Authority (ESCA) in March 2021 to empower Emirati women and encourage more to play a greater role on the boards of listed companies. The mandate requires listed companies to appoint at least one woman to their boards. Consequently, since the mandate’s introduction, 19 listed companies in the UAE have appointed female board members.
In another example, Aurora 50 is a social enterprise that works with leading organizations in the Middle East to accelerate gender balance in the boardroom. Aurora advises companies on board diversity and how to roll out gender-sensitive recruitment processes.
“These initiatives are helpful as they help set the groundwork for empowering female leadership across all sectors,” Ms. Sabet opined. “That said, the Middle East has still a long road ahead as it continues to play catch-up with other countries. As it stands, women only hold a small minority of top leadership roles.”
According to Ms. Sabet, while there have been recent improvements in awareness and initiatives, there remains a fundamental impediment arising out of the mindset surrounding women’s career advancement. Working mothers face more challenges in trying to balance the workforce requirements and family obligations, and it is common for women to consider scaling back their career aspirations or even leaving the workforce entirely due to the challenges in achieving a work-life balance.
An Extra Boost
While many companies and firms have taken different approaches to the pressing focus on DE&I, it seems as though the cries for change and results is at last being heard.
But Ms. Brewster drew some interesting comparisons to encapsulate the legal sector’s journey toward greater DEI.
“I like to think of it in terms of a space shuttle that needs an extra boost to pull it out of earth’s orbit before it can settle down to a steadier pace—or the chemical reaction that needs an input of energy to reach equilibrium on the other side. We all need that push to focus our minds on whether our DEI efforts are effective,” she said.
“The closer you get to that target, the more different voices you’ll bring on board.”
Video courtesy of Adobe Stock / blackboxguild
Photo of the Day
Looking for some engaging talks? We have the Solution: the all-new Solution Showcase, located in the Brand Marketplace. Today’s schedule includes the announcement of the winner of INTA’s inaugural Green Swag Contest, at 4:40 pm. (Cast your vote for the best green swag by 4:00 pm!)
Tuesday, May 3, 2022
Published by:
