DIVERSITY SURVEY

The need for action

WIPR’s latest diversity survey shows that the legal sector is trying to deliver initiatives, but the time has come for concrete measures. Muireann Bolger reports.

WIPR has carried out its third annual global survey to learn more about readers’ thoughts and experiences of diversity and inclusion (D&I) in IP.

We sought your views as the COVID-19 pandemic wrought havoc worldwide, leading to extraordinary challenges for the majority of business sectors, including IP.

The pandemic coincided with the increased prominence of the Black Lives Matter (BLM) movement, which has heightened awareness of systemic and historic racial injustices, so we included questions to gauge your views on the impact of these seismic events.

As occurred in the previous two surveys, the majority of our respondents were women (73%), with men and ‘other’ comprising 26% and 1%, respectively. Nearly three quarters of respondents (71%) work in private practice, while the rest come from in-house companies, service providers, IP offices and others.

The majority of respondents (80%) say that D&I is a stated value for their organisation, while more than half of respondents consider D&I to be “extremely important” (51%) or “very important” (38%) to their organisation’s success.

Outside private practice, D&I seems to have become more of a priority over the past year, with 79% of respondents working in those organisations citing it as a priority—a 9% year-on-year increase.

The percentage of respondents who say their firms have a D&I policy stands at 72%, compared to 65% of respondents in the 2019 and 2020 surveys. Despite this positive rise, however, only 41% of respondents feel the legal sector is doing well at improving diversity.

How important do you think D&I is to your organisation’s success?

Have you found remote working challenging since the start of the pandemic?

Moving the needle

Cecilia Sanabria, partner at Finnegan in Washington, DC, argues that although the sector has made some progress, there is scope for much improvement.

“Despite concerted effort on the part of private practice firms, government, corporations, and other types of legal organisations, there has been little movement forward when it comes to improving diversity in the legal profession, particularly as we look at senior levels and leadership,” she explains.

As Sanabria says, having policies in place is only the first step towards ensuring their long-term effectiveness. “Implementing specific initiatives with measurable results and consequences for not meeting those metrics is going to move the needle forward on diversity,” she argues.

Our survey found that only 75% of respondents believe their senior management team is committed to D&I, the same figure reported in last year’s survey.

This statistic, however, comes as little surprise to Susi Fish, partner at Boult Wade Tennant in Reading, UK, and chair of IP Inclusive, an organisation set up to promote D&I in IP.

“I have spoken with lawyers who do not feel their senior managers are committed to D&I or, if they are, that it isn’t being communicated downwards,” Fish says. “There is often a disconnect between how leadership teams consider how their activities are seen, and how employees actually perceive them.”

Are you working longer hours since the start of the pandemic?

”Implementing specific initiatives with measurable results and consequences for not meeting those metrics is going to move the needle forward on diversity.”
Cecilia Sanabria, Finnegan

Pandemic pressures

In good news for the legal sector, the vast majority of respondents (94%) feel that their firm or organisation had responded well to the COVID-19 crisis. Nonetheless, half say they had found remote working challenging, with 60% saying they were working longer hours.

There was a divide among private practice and “other” lawyers, who work in-house or in IP offices, with 55% of private practice lawyers finding COVID-19 working more challenging compared to just under 30% of in-house practitioners.

According to Jayne Durden, vice-president, law firm strategy at Anaqua, this contrast could be due to the differing workplace cultures experienced by lawyers in private practice and those who work in-house.

“Companies with in-house lawyers often have a greater culture of flexible working so when COVID-19 started, they maybe didn’t have to change as much. For private practice lawyers, though, there was an immense change required, literally overnight.”

According to Fish, the pressure of the billable hour looms large for those in private practice. “Having increased billable hours recorded is a way of showing presenteeism that wasn’t necessary when employees were actually in the office, as a way of demonstrating their ‘worth’.”

Firms are going to have to seriously evaluate this working culture as the threat posed by the pandemic subsides and the sector embraces more flexible working options, she warns.

“Firms and organisations will need to think carefully about ensuring their employees don’t burn out, and that a hybrid system doesn’t result in those taking advantage of flexible working being discriminated against.”

Does your organisation have a stated D&I policy?

Deep-rooted barriers prevail

As found in 2020, there is a dearth of diversity in the IP sector’s senior ranks. Just over 60% of respondents (62%) know of senior people who are from ethnic minority backgrounds, compared to 50% last year, but only 35% knew of senior people who were members of the LGBT+ community—a decrease of 7% from 2020.

LGBT+ rights campaigner Seth Levy, partner at Nixon Peabody in Los Angeles, believes that while progress has been made, stigma against the community remains.

“We have a long way to go to ensure that LGBT+ people are treated fairly, and to destigmatise LGBT+ status in a variety of settings,” Levy says.

“As with other diverse communities, the legal profession needs to continue to diversify its senior ranks, so that LGBT+ lawyers and other professionals are represented in a way that reflects the broader community.”

Only 10% of respondents know a senior manager who has a disability, while nearly a fifth feel their workplaces are not disabled people-friendly.

“Diversity initiatives typically happen first for gender, sexuality and ethnicity, and are then expanded to other areas, such as disability,” believes Chris Clarke, patent attorney at Vectura in Cambridge, UK, and co-chair of IP Ability, the IP Inclusive community for disabled people and carers.

The 10% result, he adds, tallies with research by IP Inclusive showing that there aren’t many people with disabilities in senior roles in the law. If they are there, it’s not apparent because a disability may be invisible, and the individual may choose not to disclose for fear of negative repercussions.

Clarke notes that while it may seem initially surprising that as many as half of respondents think their workplaces aren’t disabled-friendly, problems persist despite the presence of long-term legislation on behalf of those with disabilities.

”There is often a disconnect between how leadership teams consider how their activities are seen, and how employees actually perceive them.”
Susi Fish, Boult Wade Tennant

Do you consider yourself a minority in your organisation?

Do you agree that being a minority is a barrier to progression?

“Anecdotally, we’ve heard that while there may be disabled facilities in workplaces, eg, accessible toilets, they can be badly designed so that in practice they are difficult for disabled people to use,” he explains.

He adds that invisible disabilities also need to be taken into account. “A workplace may have lifts and wheelchair-accessible toilets, but can still be ‘unfriendly’ because of lighting, noise levels and other factors,” he says.

This overall lack of diverse representation in the upper ranks of law remains a persistent stumbling block to change, cautions Fish.

“People are looking for more than words to show commitment, they are looking for evidence of concrete action being taken and a visible change in how their firms look and behave.”

Discrimination persists

Our survey further showed that while 46% of respondents identify as a minority in their firm or organisation, the majority feel that being a minority remains a barrier, with nearly 20% “strongly agreeing” and slightly more than 46% “agreeing”.

More than half of respondents feel that workspaces have improved for minorities, but conversely, more than 42% believe that workspaces have stayed the same.

Of those who identify as being part of a minority, more than half (51%) feel they have been disadvantaged in their career. While half say they have experienced discrimination, only 10% say they reported it.

Do you think the legal profession as a whole is doing well at improving diversity?

Do you agree that coming from a disadvantaged background is a barrier to the progression?

“People do not report discrimination because they do not feel comfortable reporting it, or think it will have a detrimental effect on their career, or think that nothing will be done about it,” says Tom Chen, partner at Haynes and Boone in Irvine, California.

More than 60% of respondents, however, believe that increased prominence of the BLM movement in the wake of the death of George Floyd in the US last year has made a difference to their firm or organisation's commitment to D&I.

“The conversation around race and diversity is a crucial one to have, and one of the silver linings of the BLM movement is that people seem more open to having honest and difficult conversations,” notes Sanabria.

“That is a positive step forward, as acknowledgement and communication are the first steps forward toward resolving inequality and discrimination.”

Social mobility remains a deep-rooted barrier to diverse representation in law. More than one in five in our survey say they come from a socially disadvantaged background, but the majority of respondents either “strongly agree” (27%) or “agree” (43%) that coming from a disadvantaged background is a barrier to the profession.

Durden believes that the cost of a legal education remains an important barrier in many countries when it comes to boosting social mobility.

“I trained as a lawyer in Australia where university education, including law school, was largely free,” she recalls. “My class was extremely diverse, in terms of minority and economically disadvantaged backgrounds. There was always an understanding that cost shouldn’t be a barrier to entry for higher education.”

Do you believe your senior team/managing partner is committed to D&I?

”Diversity initiatives typically happen first for gender, sexuality and ethnicity, and are then expanded to other areas, such as disability.”
Chris Clarke, IP Ability

This scenario, she argues, contrasts favourably to countries such as the US and the UK where, even with a scholarship, the cost of legal training can be prohibitive.

Even as graduates move into employment, the hurdles remain, observes Durden. “I’ve heard young lawyers say they were socially unprepared for the jobs they wanted in law and feel they were discriminated against on the basis of where they grew up, how they spoke, dressed or did their hair. Our profession needs to get beyond this, and fast,” she warns.

A trade-off

According to our survey, nearly 30% of new parents feel their career opportunities had worsened since becoming parents, while 68% feel there is still a trade-off between family and work success. Three in ten say their company permits the same parental leave for men and women but half of respondents report that this is not the case at their workplaces.

These statistics struck a chord with Durden. “As an excited, newly-pregnant mother-to-be, I remember people in my firm saying: ‘oh no, what do you think the partners will say when they find out?’, as if my pregnancy was a liability,” she ruefully recalls.

She adds that when she had her second child, she was beset by anxiety. “I remember feeling that I wasn’t doing a great job—either at work or as a mother—because of all the juggling I had to do.

“Was there a trade-off? Absolutely. Looking back at my experience, what I really wanted was an assurance that I wasn’t expected to do it all, all the time.”

When it comes to parental leave, Fish argues that the legal sector needs to work towards ensuring that all parents are entitled to the same leave, and in particular that “take-up is encouraged and modelled by those in leadership positions”.

Have your career opportunities been affected since becoming a parent?

”People do not report discrimination because they do not feel comfortable reporting it, or think it will have a detrimental effect on their career.”
Tom Chen, Haynes and Boone

Do you think there is a trade-off between building a family and career success?

Steps towards change

Nearly three quarters of survey respondents (73%) say their employer has a D&I committee, compared to just over 50% last year, but other initiatives such as mentorship schemes, diversity training and affinity networks lag behind. Sixty-one percent say their employer offers mentorship schemes, 53% say they have access to affinity groups and networks, while 42% have diversity training for all staff. Only 35% of respondents say their firms or organisations have a dedicated diversity professional.

These results, says Durden, shows how far some firms are from being organisationally structured to ensure diversity, because “the foundational building blocks” are not yet fully in place. “Greater mentorship within the industry, even when done informally, can have a great impact on employee engagement, culture and talent retention,” she notes.

As the uncertainty cast by the events over the past 18 months subsides, the time has come to reflect on how to deliver real and lasting change.

As Fish notes: “The survey indicates that simply having a policy is not enough and that there is significantly more that the legal profession could be doing to improve the situation.

“Respondents consider action rather than just words is necessary—having a policy is all very well, but taking concrete actions is more important.”

Image: Shutterstock / Asier Romero

2021

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