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Inclusion Matters, Now More Than Ever:
Practical Suggestions for Making a Difference
Elaine Herrmann Blais, Carrie Gilman, Justine A. Gozzi, Dara M. Kendall, Daphne Lainson, Sheila Martinez-Lemke, Jeremy McKown, and Jason Murata
You know that feeling when you finally finish a task … then circumstances change … and you realize the job is not done? That is what happened in preparing this article. In the midst of workplace changes due to the COVID-19 global pandemic, we prepared a summary of some good practices for maintaining and making further progress in promoting Diversity, Equity, and Inclusion (DEI) even in the toughest times, and useful tips for fostering inclusive work environments in a virtual setting. Our expectation was to highlight the historical trends from the economic recession of 2008 (during which reports indicated that attorneys of color and female attorneys were likely disproportionately impacted by the layoffs from this recession) and offer guidance in preventing a repeat in history.
Then, the entire world watched in horror for eight minutes and forty-six seconds while a police officer denied George Floyd the right to breathe, shortly on the heels of a video of two men shooting Ahmaud Arbery to death while jogging. The Black and Brown communities have been disproportionally impacted by COVID-19, and racial violence against Asian communities has increased. The senseless deaths of Mr. Floyd, Mr. Arbery, and too many other Black Americans, as well as the other examples of racism and racial injustice that appear in our newsfeeds every day, serve as a wake-up call for the world that COVID-19 is not the only pandemic greatly impacting our society – systemic racism is too. The occurrence of both events simultaneously presents an unprecedented challenge for all of us.
Now more than ever, DEI must be at the forefront of all organizations. DEI is critical to ameliorate systemic racism and bias in the workplace and for businesses to survive in today’s world.
Not only is it the right thing to do, there are compelling business reasons for increasing the emphasis on DEI. Research shows that diverse and inclusive teams are more resilient, more innovative, and more engaged with their organizations. A growing body of literature also shows that diverse organizations are more resilient to recessions.
As the workplace has changed through remote working and the increased awareness of racial disparities, we have to also adapt our DEI practices. As a starting point, we have prepared the following suggestions to improve racial inequities and other biases in the work place, open dialogue, create stronger work connections, and promote true inclusion, particularly during the current pandemic. Now is the time to deeply consider your company’s DEI and make a difference in your community. No one is exempt; we all have biases, but we have the power to educate ourselves, make a correction, and change the future.
- Increase the Organization’s EQ Now and Long-Term. Recent events have led to a wide variety of feelings and emotions, including frustration, anger, sadness, mourning, and fear, among others.These may be further compounded by feelings of fear and isolation brought on by COVID-19.
- Be a good listener.As lawyers, our job is listening, but how often do we apply these skills within our organizations?We can use those tools in the workplace to really hear what people are saying in our difficult discussions and understand the nature of the systemic bias within our organizations.
- Embrace difficult discussions.While stories may be hard to hear, and some discussions about racism and systemic bias may be very difficult, now is the time to embrace these difficult dialogues.
- Direct Connections Are Key.The social isolation of COVID-19 has compounded the difficult feelings that are being experienced by persons of color, LGBTQ+ individuals and disabled individuals.Absent emotional well-being, a person cannot fully and productively contribute, and a simple “how are you feeling” or “are you doing okay” can go a long way to promoting such well-being.
- Our circles of concern, influence and control are wider than we think.Currently, we are reacting to the events of the day and our circles of concern have been awakened to DEI like never before.As we move forward, we can each influence our organizations to wake up, step up and embrace DEI initiatives; and we can each control our own behavior as we recognize our biases and act to eliminate systemic racism and other biases in our daily activities.
- Unconscious Bias Strategies/Training Now and in the Future: We all have unconscious biases that often help us make sense of the world around us. Sometimes these biases get in our way and lead us to make inaccurate judgments about colleagues and clients. There are a number of inclusive strategies you can apply right away, day-to-day, to counter the unintended consequences of unconscious bias. There are also a number of unconscious bias courses focused on uncovering and identifying one’s unconscious biases about other demographic groups, see for example, a test designed by Harvard University.
- Conscious Inclusion as a New Normal: In the legal realm, conscious inclusion means being thoughtful on the distribution of quality work to team members.Conscious inclusion requires that supervisors ensure that DEI is considered throughout all phases of a workstream, from assignment of projects and tasks through completion.During the financial crisis of 2008, reports suggested that adherence to conscious inclusion efforts decreased, contributing to the exodus of underprivileged groups from the legal profession at a greater rate than white males during that time.Conscious inclusion is paramount to ensure that attorneys from underprivileged groups continue to feel like full and equal citizens, and to continue to develop the types of skills and experiences necessary to be in a position for promotion to a future leadership role.
- Run Inclusive Virtual Team Meetings in the New Normal: Virtual connections are critical to conscious inclusion in today’s new normal.Below are a few tips to help managers lead inclusively in a virtual environment.
- Is my team able to connect and comfortable connecting?Although the legal community has quickly and widely adopted video conferencing technology, there has been little discussion about barriers to its use by all members of our community.As we all continue to work from our homes, we should be mindful that not all households have access to such technical solutions.Furthermore, self-image or other issues may prevent individuals from wanting to share video of their residences.Leaders may benefit from reaching out directly to those individuals who do not join a meeting by video to assess whether any such barriers exist and how they may be overcome.
- Facilitate Full Participation.Continue to follow good practices of controlling the discussion to ensure that all members can contribute and their contributions are respected.In the video conferencing environment, take advantage of the available technologies such as whiteboards, chat boxes, and polling tools, to engage team members, and to provide a visual way of conveying complex information.
- Promote Positivity.With the many challenges people are currently facing, it is too easy for negative habits to permeate a meeting – such as focusing discussions on fault, blame and mistakes – which leads to less productivity and engagement.Leaders should focus on solutions and celebrate successes (even small ones) to maintain a culture of positivity.
- Engage in Active Listening: Often, when we engage via screens, we do so passively.This creates distance between listener and speaker.However, we also are unable to engage in some of the verbal active listening techniques we are accustomed to (e.g., saying “right,” “uh huh,” “gotcha,” etc.) , as they are intrusive during videoconferences in a way they are not during face-to-face discussions.To communicate engagement in a video conversation, use visual active listening techniques such as nodding your head, smiling, and, at an appropriate time, verbal active listening techniques such as reflecting back themes from a conversation. Many virtual conference tools allow participants to “react” with virtual thumbs up or clapping to signal approval.
- Be Mindful of Disabilities: Please be mindful of colleagues with disabilities.Use the tools and resources your virtual platforms offer to create an opportunity for all colleagues to participate fully in meetings.For example, platforms such as Zoom and Microsoft Teams offer closed captioning to support people who are deaf or hearing impaired.
Diversity, Equity, and Inclusion is not only a good thing, but it can make your work environment more enjoyable and attract others to join your community. The tips above are just starting points for the discussion of how we can continue to improve DEI, not only in the legal community, but also in the communities that we serve.
To continue this discussion, AIPLA’s Diversity in IP Law Committee will hold a series of roundtables to allow our members to share DEI practices that have made a difference in their own organizations, so that we can all learn from each other.
The first roundtable discussion will be held on Wednesday, July 22 at 3:00 PM ET. For more information or to RSVP for the event, please click here or reach out to Justine Gozzi (firstname.lastname@example.org), Chair of the AIPLA Diversity in IP Law Committee, or Angela Grayson (email@example.com), Vice-Chair of the AIPLA Diversity in IP Law Committee.Another organization dedicated to improving diversity in the IP profession is the Foundation for Advancement of Diversity in IP Law (formerly AIPLEF). You can learn more about the Foundation’s activities at the following link (“Donate” button at top right corner): https://www.diversityiniplaw.org/about/
 See e.g., “Law Firm Diversity Among Associates Erodes in 2010” published by the National Association for Law Placement reporting that “The latest NALP findings on law firm demographics reveal that the overall representation of women and minority lawyers in law firms declined between 2009 and 2010, likely a casualty of massive lawyer layoffs during the 2008-2009 recession,” available at https://www.nalp.org/minoritieswomen (last accessed June 16, 2020).
 See e.g., The Value and Power of Diversity, discussed in “AIPLA Comments on the Report Required by the Study of Underrepresented Classes Chasing Engineering and Science (SUCCESS) Act of 2018,” dated June 28, 2019, available at: https://www.aipla.org/detail/advocacy-article/aipla-comments-on-the-report-required-by-the-study-of-underrepresented-classes-chasing-engineering-and-science-(success)-act-of-2018 (last accessed June 16, 2020).
 See, e.g., “New Study Reveals That Diversity and Inclusion May Be the Key to Beating the Next Recession” published December 20, 2019, available at https://fortune.com/2019/12/20/diversity-inclusion-key-to-beating-next-recession/ (last accessed June 19, 2020).
 See, e.g., “Strategies of Confronting Unconscious Bias” published May 2016, available at https://kathleennaltyconsulting.com/wp-content/uploads/2016/05/Strategies-for-Confronting-Unconscious-Bias-The-Colorado-Lawyer-May-2016.pdf
 “Implicit Association Test” available at https://implicit.harvard.edu/implicit/education.html
Elaine Herrmann Blais, head of the Litigation Department in Goodwin’s Boston office, has been litigating patent cases for nearly 25 years. She has represented patentees and accused infringers in all phases of patent litigation involving diverse areas of technology, including pharmaceutical products (including current representation of Teva as patentee in Teva v. Eli Lilly), biosimilars (including branded pharma company Boehringer Ingelheim in its pursuit of biosimilar products), and consumer products (including as co-lead counsel for Procter & Gamble in Gillette v. Dollar Shave Club). Elaine has successfully first-chaired (or co-first chaired) numerous complex contested matters before judges, juries, and arbitration panels.
Justine A. Gozzi is the current Chair of the AIPLA Diversity in IP Law Committee, a Trustee and Executive Board Member to the Foundation for the Advancement of Diversity in IP (formerly AIPLEF), and a lifelong champion of diversity. She is a registered patent attorney with a broad transactional practice. She counsels clients on consumer product matters involving due diligence, freedom to operate, and patentability concerns and assists clients in patenting, protecting and commercializing inventions, both utility and design. Justine advises clients regarding worldwide portfolio management and strategic development, licensing, agreements, M&A, and litigation strategy. Justine is an alum of the University of Virginia and Brooklyn Law School. She currently practices at Baker Botts, LLP as Special Counsel.
Dara Kendall leads the legal team supporting P&G’s global Fabric & Home Care businesses. Her work spans advertising, safety, trademarks, and patents. She spent six years in Asia, where she led the patent teams in China, Japan, and Singapore that handled P&G’s businesses in Greater China and APAC. Over the span of her P&G career, Dara has worked in various businesses at P&G including its Feminine Care, Tissue & Towels, Beauty, Diapers, Pet Care, Oral Care, and Shaving businesses.
Daphne Lainson is Chair Smart & Biggar, and a partner in the Ottawa office. She specialises in securing patent protection for chemical, pharmaceutical and biotechnology-related inventions, and is an expert in (bio)pharmaceutical lifecycle management. She also serves on the firm’s Diversity and Inclusion Committee.
Sheila Martinez-Lemke practices with Weaver Austin Villeneuve & Sampson in Oakland, California. As a patent attorney with over fifteen years of experience, Sheila counsels clients on strategic development of international patent portfolios in the electrochromic, digital imaging, and biomedical spaces. She frequently speaks on patent-related topics at legal conferences and serves on the Advisory Board of the San Francisco Intellectual Property Law Association.
Jeremy McKown is a Vice-President at Janssen R&D, a Johnson & Johnson affiliate (J&J), where he manages a global team of attorneys and professionals focused on drafting and negotiating complex agreements related to J&J's pharmaceutical business. Prior to J&J, he worked as a Senior Counsel – Patents for Schering Plough, and in private practice in Washington, DC. Jeremy has a B.S. in Chemistry from Ithaca College, a M.S. in Chemistry from Bucknell University and a J.D. from Syracuse University College of Law.
Jason Murata is a Partner at Axinn, Veltrop & Harkrider LLP in the San Francisco office. Mr. Murata graduated from Washington University School of Law. His practice focuses on complex patent infringement and trade secret litigation in diverse technological areas as pharmaceuticals, medical devices, food products, consumer products, among others. He has been involved in all aspects of patent infringement and trade secret litigation, from pre-suit investigation to trial and appeal.