Mcle Self-study Article

• Publication year: 2019
• Author: F. Jason Far-hadian

MCLE Self-Study Article

F. Jason Far-hadian

Mintz, Levin, Cohn, Glovsky, and Popeo P.C.

Chris Chambers Goodman

Pepperdine Law School

PROMOTING INCLUSION AND DIVERSITY IN THE INTELLECTUAL PROPERTY BAR AND BEYOND

(See end of this article for information on receiving 1.0 hour MCLE self-study credit in Recognition and Elimination of Bias in the Legal Profession and Society. )

* * *

Introduction

In 2012, when Professor Goodman and I co-wrote an earlier version of this article, the "Me Too" movement and the pioneering California law (SB 826), which mandates inclusion of women in publically-held corporate boards, were not even on the horizon. Most large law firms had very few female or minority partners, and while there was some talk about further diversifying the ranks, I cannot remember many firms that had fully developed or set in place specific plans to promote inclusion of attorneys with diverse backgrounds and orientations. Nor were there any internal or external compliance measures that were strictly enforced towards that end.

Fast forward to today, year 2020 by the time this article is published, almost every major law firm in the United States is actively seeking to hire and promote more diverse candidates. Many firms have dedicated personnel and committees that are in charge of promoting diversity or providing programs on the importance of inclusion and the negative effects of bias. It seems like, we are finally at an age where all kinds of differentiating factors, in addition to gender and pre-classified races and orientations, are being more seriously considered as diverse. Also, diversity and inclusion is substantially more important in the legal and the business worlds, and especially to corporate clients, whereas in the past such considerations and evaluations had been mainly reserved to institutions of higher education for the purpose of student admissions.

While the legal profession, as well as the society at large, has made great strides to combat discrimination and bias by promoting diversity and recognizing the importance of inclusion, we still remain short of fully embracing the ideology as a whole. For example, in a seminar I attended on diversity a few weeks ago, there were female and minority attorneys from reputable law firms that, first confidentially and then openly, discussed scenarios in which they were passed over, belittled or excluded from formal meetings with clients or participation in certain client activities, even in cases on which they were actively working. On the opposite end, there were many examples of very successful diverse people in the room who had been appointed to high ranks in both corporations and law firms.

It goes without saying that significant advances in social justice and equality do not happen overnight and require deliberation, planning and persistence on the part of those who wish to achieve it. That said, financial incentives help, and have helped, clear the way and set expectations. For example, many corporate clients now require a law firm, or the point partners handling a matter, to provide a list of supporting attorneys sometimes with an overt directive that a certain percentage of the group should consist of attorneys with diverse backgrounds who will actually do the work on that matter. Accordingly, much credit and recognition also goes to industry leaders who have acknowledged the importance of promoting diversity and combating bias from the top with ear-marked financial incentives.

[Page 11]

In addition to providing a legal background on discrimination, this article will also provide strategies for reducing bias within the intellectual property bar, as well as in professional working environments, such as law firms. We begin with an overview of the applicable laws to help provide a better understanding of the complexities of discrimination and bias. We then turn to a discussion of mechanisms for identifying both implicit and explicit biases and discrimination in the field of intellectual property law. The article concludes with a list of concrete strategies for combating or preventing the manifestation of these biases and discriminatory actions.

Legal Standards

There are a number of federal and state laws that address discrimination in the employment context. For instance, Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination based on membership in a "protected class."¹ Classes that are protected by Title VII include: race, color, religion, sex, and national origin.² Employment discrimination is defined as applying different terms or conditions of employment to one individual as compared to another, because ofthat individual's membership in a protected class.³ The comparison must be made between individuals who are "similarly situated" in terms of their job titles, positions or duties.

If similarly situated individuals have different terms or conditions of employment, then it would be appropriate to examine the reason for the differential treatment. For example, where two employees of different races are treated differently, then a prima facie case of discrimination may be made against the employer.⁴ In litigation, upon establishing a prima facie case, the burden shifts to the employer to prove that the basis for the differential treatment is due to a legitimate business purpose,⁵ which if proven would then shift the burden back to the claimant employee. To succeed in an unlawful discrimination case, the employee will then need to demonstrate that the allegedly legitimate business purpose is in fact a pretext for the differential treatment.⁶

In addition to Title VII, certain statutes have been promulgated to provide more specific protections or rights to individuals in minority groups or those with special needs. For instance, the Equal Pay Act of 1963 ("EPA") protects men and women who perform substantially equal work in the same establishment from sex-based wage discrim-ination.⁷ As another example...