Why is everybody talking about diversity and inclusion?

J. Barrett (GB) and M. Névant (FR)

Why talk about diversity & inclusivity (D&I)?

It is now well establishedThere is a plethora of research supporting this statement, for example McKinsey & Co.’s 19 May 2020 report, Diversity Wins: How Inclusion Matters, available at https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters# (accessed 13Nov2021) that diversity and individual uniqueness in its people bring creativity and vitality to an organisation, enriching its business practices and making it more successful.

It is likely that, by capturing and drawing on diverse points of view, we can improve the advice and services that we can offer to clients and prospective clients. Our clients and prospective clients are, after all, focused on innovation, which itself requires novel perspectives that are more likely to arise from divergent thinking or differing experiences and perspectives. And lost opportunities or faulty products can arise without diversity.

For exampleTom Haile, This Viral Video Of A Racist Soap Dispenser Reveals A Much Bigger Problem In Tech, 18Aug2017, available at: https://www.iflscience.com/technology/this-racist-soap-dispenser-reveals-why-diversity-in-tech-is-muchneeded/ (accessed 26Jan2022), those no-touch antiseptic gel dispensers that we've all got so used to using during the covid-19 pandemic often don't work for people of colour, as a dark-skinned hand may not be light enough to register on the sensor used. These dispensers obviously weren't tested on a variety of skin tones, which it would have been if the development team had included people who do have darker skin. Similar deficiencies may be found in clinical trials protocols for testing new drugs and vaccines, for example.

But it's not just about inventors and potential patent applicants. Diversity in our own organisations could also enable epi members to relate more effectively to the variety of other stakeholders in our world of patent work, also including patent office personnel, associates at home and abroad, other service providers, and the wider community in which we operate.

What do people really mean when they talk about D&I?

Diversity in the workplace involves the co-working of people with differing characteristics, skills and personality traits. For example, a diverse team may comprise people from various cultural, academic and professional backgrounds; a team is also more diverse when there's a balance in traits such as gender, age and race.

More broadly, when we talk about 'diversity', we refer to any aspect or characteristic that makes one person stand out or potentially be regarded as 'different' from another - particularly those differences that are not necessarily relevant to being able to do the job at hand, or to fulfil the expectations of the organisation or team concerned. We have already noted one example where 'differences can make a difference': ethnic origin or at least skin tone in the case of the gel dispenser. And there are obviously far more characteristics of people that could be involved, such as (alphabetically):

age or generation; appearance; (social) class; colour; creed, belief or religion; culture, (mental or physical) disability; economic background; ethnicity or national origin; gender (including reassigned gender); marital, civil partnership, pregnancy or parental status; occupational or work role or status; political affiliation; race; and sexuality or sexual orientation or identity.

To ensure a diverse range of people within our teams, we need to be able to recruit from a broad range of candidates. And it's not just about getting a variety of people into our organisations: it's also about retaining people that contribute to this diversity for as long as the arrangement works for both parties. It is unlikely that someone who feels that they don't belong or that they are often excluded (from the most interesting work, decision-making processes, promotions, benefits, or other positive aspects of our work lives) will stay in or continue to add benefit to our organisation or business. This sense of inclusivity is therefore vital to maintaining and benefitting from diversity.

In general, in order to achieve and maintain diversity within our organisation - our private practice IP firm or in-house department, say - inclusiveness must be fostered; this doesn't happen automatically. To build an inclusive workplace, we need to provide those opportunities equally to all potential and existing employees. And we need to revisit and improve our procedures regularly to ensure that they're respectful to all people, regardless of individual characteristics that make up the team's diversity. Indeed, we all need to be informed and have our awareness raised, so that we can recognise and mitigate against circumstances, language and behaviours that may seem acceptable to some but are alienating to others.

Furthermore, increased inclusivity can itself lead to greater diversity. There is plenty of evidence1 to show that job candidates who represent a variety of characteristics are more attracted to work in environments where there is already a recognisable level of and accommodation for diversity. As we are now in a candidate-driven job market, where older people are retiring and younger people expect to remain only a few years with one employer, we need to increase our chances of recruiting and retaining the talent we need both for running our business or in-house department and for providing services to our internal or external clients.

A virtuous circle can therefore develop, with diversity and inclusion each supporting and even promoting the other.

How do we know that D&I really matter in business - especially in our profession?

The bottom line is that the overall performance of each of our organisations is linked to diversitySee footnote 1. By 'performance' is meant one or more of the typical business indicators, such as profitability, market share, employee turnover, etc. It seems that there is an optimal blend of talent characteristics that can improve or maximise the performance of each of our firms, departments, practices or companies.

In other contexts, it is self-evident that diversification is good for driving performanceExamples adapted from Paolo Gaudiano and Ellen Hunt, How To Convince Executives To Embrace Diversity, 07Nov2016, available at https://www.forbes.com/sites/gaudianohunt/2016/11/07/how-to-convince-executives-to-embrace-diversity/?sh=770ee3de7650 (accessed 25Jan2022). For example, if you are invested in the stock market and you are reliant on returns to help fund your retirement, then it is generally accepted that it is not a good idea to invest 99% of your resources in a single stock, simply because that one stock may have historically performed very well. Likewise, it is not a great idea for a football team to be composed entirely of forwards, only because they score more goals than team members in other positions. By the same token, it is not sensible to people our teams, firms or companies with a homogeneous selection of individuals, even if this strategy consistently produced good results in the past.

Of course, in reality, the highly successful stock/fund, football and business managers are mainly focused on optimising the blend of people talent available to them to maximise their performance, rather than on diversity per se. Diversity may or may not be beneficial in and of itself - your answer to this will depend upon your subjective viewpoint - but it is undoubtedly beneficial (as shown by relatively objective performance dataSee footnote 1, ibid.) to provide an alternative blend of talent - of 'people diversity' - that leads to a superior performance.

Differences between those in our organisations, even if these initially lead to conflict, can produce constructive results and better advice for our clients. Cognitive diversity has been shownScott E. Page, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies, 2007, available at https://www.researchgate.net/publication/24117966_The_Difference_How_the_Power_of_Diversity_Creates_Better_Groups_Firms_Schools_and_Societies (accessed 25Jan2022) to be especially useful for problem-solving and innovation; and diverse juries who, like Patent Attorneys, need quickly to absorb and retain a variety of facts and case details, have been shownSamuel R Sommers, in conversation with Anne Sasso, Group Diversity: Mock Juries Reveal Surprising Effects of Diversity on Groups, 05May2006, available at https://www.science.org/content/article/group-diversity-mock-juries-reveal-surprising-effects-diversity-groups (accessed 25Jan2022) to recall more of these details and with greater accuracy, with consideration of a wider range of perspectives, than did homogeneous juries. These collective traits appear to be ideal for bettering our responses to examination reports, preparing for hearings, and communicating with our innovative clients.

When and where can we discuss D&I matters further?

epi Council recently tasked a working group to explore D&I matters, and consider what guidance, help and support - if any - should be available for epi members to navigate them. We, the authors, are both members of this group, and would appreciate your feedback, including comments on this article and the issues raised, together with any thoughts or experiences you may share on the topic in general.

We would be especially interested to hear your suggestions for any materials the group could provide or actions (such as training or education) we could take to support epi members in this area and help all members to meet the needs of our clients.