Diversity and inclusion can be a challenge to get right but the benefits can be felt across organizations. Sarah Morgan speaks to those at the start of their diversity journey, as well as those who have paved a path for others to follow.
In 1937, Justice Anna Chandy (India) became the country’s first female judge. Twenty-two years later, she set another historical precedent when she was appointed to the Kerala High Court—the first woman judge in an Indian High Court.
“I must admit that I was not free from trepidation when I first stepped up to the Bench. However, what was foremost in my mind was a fierce determination to make a success of this experiment. I knew I was a test case.
“If I faltered or failed, I would not just be damaging my own career, but would be doing a great disservice to the cause of women,” said Justice Chandy, recounting her experience in a later speech.
Justice Chandy remained on the bench until 1967. In her retirement, she served on the Law Commission of India before her death in 1996.
While her initial judiciary appointment was a moment to be celebrated, albeit a long time ago, India’s legal profession has been slow to accept and retain women.
“The opening of doors to the judiciary did not automatically put an end to the struggles to include women in the legal field,” said Abhilasha Niroola, Principal Attorney at Mehta & Mehta Associates (MehtaIP) (India).
In 1989, Justice M. Fatima Beevi was appointed as the first female judge of the Supreme Court of India. But now more than three decades later, at the Supreme Court level, only two out of 30 judges are women. The High Courts paint a similar picture: there are 78 women judges in various High Courts, comprising less than 8 percent of the total number of judges.
It is not just women who are underrepresented at a high level. Despite the Supreme Court of India officially recognizing transgender people as a third gender in a landmark ruling in 2014, the transgender and LGBTQ communities are among the most marginalized groups in the country.
A survey conducted by Indian employment website TimesJobs in 2018 highlighted that 57 percent of participants responded negatively to a statement that their companies (across industries) openly recruited LGBTQ+ and candidates with disabilities. More than 55 percent said they still experienced bias in the workplace, including over characteristics such as ethnicity, gender, and sexual orientation.
The legal profession, however, has made some advances (albeit seemingly small ones) in this regard. “Efforts towards the inclusion of transgender people in the legal field are showing results. As of 2018, there are three reported transgender judges in India. In the same year, the first reported transgender lawyer was enrolled as an advocate under the ‘third gender’ category,” Ms. Niroola noted.
“As these issues are so deep-rooted in our society, it may take a lot more effort and time to change the perception of the public at large,” suggested Ms. Niroola, but the current diversity and inclusion (D&I) situation is far better than it was a few years ago, she added.
Justice Prathiba M. Singh of the High Court of Delhi (India) is optimistic about the future, adding that efforts are continuously being undertaken to ensure adequate representation at various levels.
“There is a clear trend towards making the legal community more representative in terms of diversity. The challenges and barriers which existed two decades ago are slowly diminishing,” said Justice Singh, who will form part of a panel of esteemed leading women judges from around the globe as they provide updates and insights from recent key trademark decisions during Hot Topics in Trademark Law: A View From the Bench on Friday, November 20 (9:30 am–11:00 am EST).
Justice Singh added: “Wherever societies represent a diversity of hues, the same ought ideally to be reflected in the judiciary. The perfect balance may not be achievable but effort should always be made to ensure adequate representation to diverse social groups and sections.”
Around the World
It is a similar situation in many other countries. In Kenya, the justice sector has made some progress in “attaining a semblance of equality,” spurred on by constitutional provisions that have outlawed discrimination, said Mary Kasango, Presiding Judge of Commercial & Tax Division, Milimani Law Courts, Nairobi (Kenya).
In 2003, Judge Kasango was appointed to the High Court alongside one other female judge. At the time, there were only two other women on the bench. Today, 53 of the 126 High Court judges are women. The Court of Appeal has seven female judges, alongside 14 male judges on the bench; the Supreme Court of Kenya has only two women out of seven judges.
Judge Kasango will also take part in the Hot Topics in Trademark Law: A View From the Bench session. She added that the discussion around the Kenyan diversity landscape has to be understood in light of the fact that Kenya is largely a patriarchal society.
“The girl child is still discriminated against in the home and in the larger society in various ways,” she explained. For example, more particularly in the rural parts of the country, girls are denied education or married off when they are still in school.
“It is illegal for children to marry but the enforcement is sometimes weak,” Judge Kasango said.
However, it is important to note that Kenya promulgated a new Constitution in August 2010, and this has “heralded key policies which are geared” at progress toward true equality, she said.
The judge concluded: “Despite having a progressive Constitution there are many structural societal and cultural barriers in the legal profession which need to be addressed.”
In Brazil, official 2019 statistics from the Brazilian Institute of Geography and Statistics (IBGE) highlight the gender gap: women represented 43.2 percent of the workforce but earned, on average, 28.7 percent less than men.
Research undertaken in late 2018 by the Center for Studies of Labor Relations and Inequalities—conducted alongside the Legal Alliance for Racial Equity and São Paulo-based law school FGV Direito SP—found that 19 percent of law firm employees were Black (10 percent identified as women and 9 percent as men).
The data, collected from nine of Brazil’s leading law firms, found that the number of Black lawyers stood at under 1 percent.
“Many firms in Brazil and Latin America need to remove their blindfolds, analyze their internal professional profiles, and recognize that they can improve their recruitment, selection, and professional advancement processes,” declared Alicia Daniel-Shores, Chief Executive Officer of Daniel Law (Brazil).
More than 10,000 miles away, in Singapore, the gender balance tips toward men as lawyers move up the ranks. The Law Society of Singapore reports that of a total of 2,275 juniors (with less than five years’ standing), almost half are women. But there are only 797 women (33%) who are senior (with more than 15 years’ standing) compared with 1,597 men.
Amica Law (Singapore) is a bit of an outlier in this regard, with half of director level and junior partner roles held by women. However, Anna Toh, Associate Director at the firm, admits that hiring from a diverse range of socioeconomic backgrounds can be difficult.
“In the legal profession, you tend to gravitate towards hiring from a set of elite schools. There are two main law schools in Singapore and, when you go further upstream, you see that the class of students consists of people who have gone to the same set of schools,” she said.
It is more difficult to gauge diversity in Russia. There are no official diversity statistics for the legal profession there, and D&I is a fairly new subject, explained Natalia Gulyaeva, Office Managing Partner, Hogan Lovells CIS (Russia).
“The overall representation of women in the legal profession continues to increase. For example, the head of the Russian IP Court is a woman,” Ms. Gulyaeva said. “However, the number of women in the top legal positions is still low,” she added, noting that as an IP arbitrator, she has never had a woman as co-arbitrator.
The picture in the United States is far from perfect. According to the National Association for Law Placement (NALP), only one in five equity partners in U.S. law firms are women and less than 8 percent are people of color.
The report, issued late last year, found that women, people of color, and women of color all made small improvements in representation at the partner level in 2019.
Reacting to the report, James Leipold, NALP Executive Director, said: “The overall arc of the storyline for large law firm diversity remains the same—it is one of slow incremental gains for women and people of color in the associate and partnership ranks, interrupted by some recession-era setbacks, but at a rate so slow as to seem almost imperceptible at times.”
A Western Concept
The business case for D&I has been outlined by numerous studies, including a 2016 report from Acritas Research (UK) which suggested that diverse legal teams not only perform better but they ultimately receive 25 percent more of their corporate clients’ legal spending.
However, there are pitfalls that need to be avoided, where possible. One glaring challenge to the entire concept of D&I is that it can be seen as a “Western” ideology.
Trisch Smith, Global Chief Diversity & Inclusion Officer at Edelman (US), who presented a Capsule Keynote on Tuesday, November 17, noted that diversity, equity, and inclusion may look very different across continents and even from country to country. Additionally, different laws, systems, and programs may be in place around the globe.
For example, in the United States, she said, “persons often look at diversity through the lens of gender, race, ethnicity, age, and other characteristics. However, this characterization of diversity and the current state and challenges of D&I in other markets may vary.”
Globalizing any D&I program requires “clear goals, leadership involvement, localized infrastructure and a deep understanding of cultural differences and workforce needs in various markets around the world,” Ms. Smith said.
She added: “The ideal approach is to develop a global vision and mission with the ability and flexibility to tailor regional/country-specific goals and programs as needed.”
UL LLC (US), the safety science and certification company, has 15,000 employees worldwide, with the majority outside the U.S. “At its core, D&I is global, even if we perceive it differently across geographies,” said Sanjana Sharma, Associate General Counsel, Intellectual Property at UL.
“The differing views on D&I around the world can present challenges, but more importantly, the open dialogue presents opportunities to look at safety, sustainability, and security in new ways and to better understand our customers and reflect their own diversity.”
Ms. Sharma is moderating the panel session Diversity and Inclusion: How to Live Your Values to the Benefit of Your People and Your Brand today, November 19 (11:45 am–12:45 pm EST). Executives from H-D USA (Harley Davidson) and Mattel, Inc. will join her to discuss how their businesses have transformed to the benefit of their people, their reputations, and their bottom lines.
As part of its process to address D&I, UL undertook a series of focus groups to understand the experience and perspectives of its employees around the world.
“We’re taking focus group and interview data and figuring out how our colleagues in other regions view D&I, and what would help them feel included and part of this journey,” Ms. Sharma noted.
Similarly, Ms. Daniel-Shores believes in using data to drive efforts. She finds that one of the biggest challenges is to create metrics that can measure D&I advancements, because “real problems require real numbers.”
In South America, where she is based, the focus needs to be on “talking the talk, and walking the walk,” she said. “It’s essential to be able to differentiate law firms that use D&I merely as a marketing speech from those that are actually diverse in their workforce, in positions of partners and leaders and in their policies.”
She took over as Chief Executive Officer of Daniel Law in 2005 and, although historically the firm had always had women in leadership positions, working on D&I intentionally greatly improved the firm’s profile. Today, 48 percent of the firm’s employees are women. Among leadership roles, 49 percent are women, and at the partner level, 52 percent are women.
“Our D&I journey formally began at the end of 2017, and in 2018 we took the first more concrete measures, such as a study that identified the existence of a salary gap at the company. Our decision to correct this salary gap was immediate,” Ms. Daniel-Shores said.
Daniel Law has changed its selection and recruitment process to ensure diverse pools of candidates. In the last two years, 30 percent of those hired have been professionals from minority groups.
Part of the demand for a more diverse legal sector is coming from corporations requiring legal services. In early 2019, more than 170 U.S. general counsel demanded in an open letter that U.S. law firms improve their diversity or risk losing business. While they applauded firms that have “worked hard to hire, retain, and promote to partnership this year outstanding and highly accomplished lawyers who are diverse,” the counsels issued a stark warning.
“We also know that there are women, people of color, and members of the LGTBQIA community and others who are no doubt equally deserving, but are not equally rewarded,” said the letter.
Subsequently, calls from in-house lawyers urgently demanding more focus on diversity have echoed across the profession, but some argue that without formal requirements in place, the requests may fall on deaf ears.
“If corporations were to harden their requests for diverse law firms, the changes in the legal landscape would be more effective and come about much more quickly,” suggested Ms. Daniel-Shores.
While UL is still in the early stages of its D&I strategy, grassroots efforts have become formalized corporate initiatives with the company recognizing diversity, equity, and inclusion as critical to achieving its mission: working for a safer world.
In September 2019, Jennifer Scanlon became the first female President and Chief Executive Officer in UL’s 125-year history. Recognizing the importance of D&I, Ms. Scanlon became a signatory of The Chicago Network’s Equity Pledge and of the CEO Action for Diversity & Inclusion pledge.
These pledges and other commitments made by UL are shaping the expectations of its leadership, policies, and partners, and are viewed as an important steppingstone to “building a culture of inclusion,” Ms. Sharma said.
Shifting the Balance
The lack of women in the science, technology, engineering, and mathematics (STEM) disciplines seems to have a knock-on effect on businesses working in the IP field. Globally, less than 30 percent of the world’s researchers are women, according to the United Nations Educational, Scientific and Cultural Organization’s Institute for Statistics (Canada).
For the last decade, Justice Singh has been involved with a program at the Department of Science & Technology, within the Ministry of Science and Technology in India, which imparts specialized training for women qualified in science in patent law and practice.
“Most of the women who get trained find employment in the IP cells of companies or in IP law firms. This program taps the latent talent of women who might have otherwise given up on their careers due to family or other social commitments,” said Justice Singh.
For Edelman, the continued fostering of inclusion has been one of the most significant challenges the company has faced in its efforts.
“Diversity and inclusion leaders have historically focused on the ‘D’ in D&I but haven’t always focused enough on the ‘I’ and the importance of inclusion in maintaining diversity,” said Ms. Smith. “Seeing diversity and having a seat at the table is not enough, if the diverse voices at the table are not heard and valued.”
Ms. Daniel-Shores agreed, adding that it can be a challenge to create an inclusive environment.
“There are some minority groups that do not see law firms as a career choice for lack of visibility. Law firms are still predominantly male, white, heterosexual, and cisgender, so fostering an inclusive environment requires a relevant change of culture.
“In other words, hiring diverse professionals is a small challenge compared to making them feel that they really belong in their workplace,” she said.
Ms. Sharma concluded: “Not only is it the right thing to do—the data show that diversity AND inclusion are good for business. Diversity of thought is critical to innovation and creativity, best achieved by enabling colleagues and partners to bring their authentic selves to the office and to every project.
“The blurred lines between work and home make this more important than ever.”
Article published on INTA. Read it here.