The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Wednesday, 7 February 2018

Event Report: IP inclusive - Inappropriate Behaviour

Last week's IP inclusive event was a reminder that the IP industry is not free from the abuses of power so prevalent in other industries. Merpel reports on the issues discussed.

The IP inclusive event highlighted that anyone may experience inappropriate behaviour, and was attended by a range of IP professionals of different genders and ages. The event took place with the backdrop of the Fellows and Associates' 2017 survey, in which 43% of respondents had experienced some form of discrimination, on the grounds of gender, sexual orientation, parental issues, age, mental or physical health, race or place of origin, marital/civil partnership status, or religious or cultural beliefs.

Proceedings at the workshop began with a welcome from Andrea Brewster OBE of IP inclusive. Andrea introduced Dominic Houlihan, Deputy Director of HR and Organisational Development at the UK IPO. Dominic gave a lighthearted but very personal account of his experience of prejudice and discrimination, and continued by describing some of the practical measures the UK IPO have implemented to create an inclusive and open environment. 

Dealing with inappropriate behavior
- a perplexing issue
A particular topic of discussion was how inappropriate behavior from “high-ups” inevitably effects employee retention and is thus damaging to a firm. Anybody involved in recruitment in the IP industry will be aware that attracting and retaining good people can be a challenge. In response to the question “what would/did you do in response to an instance of inappropriate behavior?”, the common answer was “leave the firm”, whether the respondent was a trainee, qualified attorney or partner. Given the difficulties that many firms are encountering in hiring, the unwillingness of certain firms to adequately address inappropriate behavior is particularly surprising. Moreover, it was also noted that the people to whom this message most applied, were not in the room.
Kat checking out the job market
Dominic was followed by Catherine Hamilton and Tracy Powley of Focal Point Training. Catherine and Tracy led the attendees through a series of exercises in which personal experiences of inappropriate behavior at work were explored, as well as how inappropriate behavior may be tackled at an individual level. 

A number of attendees also highlighted that the most serious instances of inappropriate behaviour predominantly occur in situations of a power imbalance, as opposed to between colleagues at similar levels, and that dealing with inappropriate behaviour from those more senior than yourself represents a particular challenge. 

Another issue that was clearly a concern among attendees was how to mitigate the risk of retaliation in response to a complaint of inappropriate behavior. Indeed, it is the fear of retaliation that has allowed inappropriate behavior to persist so long in other industries. Complaining about inappropriate behavior runs the risk of making the situation worse, reputational damage and slower career advancement. 

It was also mentioned that the fear of damaging your reputation is particularly relevant in instances of inappropriate behaviour occurring at a low level over a long period of time – the drip-drip effect. Complaining about any particular instance may seem almost ridiculous if taken out of context and not regarded as part of a systematic pattern. 

One practical solution suggested for tackling serious inappropriate behaviour within a firm, was that of providing HR with the power to deal with inappropriate behaviour, no matter how senior level the perpetrators may be. HR must be able to investigate the issue without the fear of repercussions to themselves. 

Depressingly, the event also highlighted that the IP profession mirrors other industries, in that there are certain powerful individuals known to be the persistent perpetrators of inappropriate behaviour, but that these individuals often remain unchallenged. As commented above, this is clearly not just unpleasant for the people concerned, but exceedingly damaging for the firms or companies involved. 

Merpel wonders if there are any further practical suggestions people may have for addressing the issue? 


THE US anon said...

I would suggest that far too often the "option" of HR is not a practical suggestion.

This is because far too often HR is held to the same power imbalance that infects the situation, and is the lapdog of the person with power that is also the person with the inappropriate behavior.

Perhaps not a general suggestion (given as generally, firm positions do not have ethics boards as an outlet), but attorneys who may be in the role of those displaying inappropriate behavior DO have a "higher power" that they must bow to: an independent ethics board (with powers of censure and deprivation of the power to practice).

Leastwise, here in the States this option exists.

Not sure how much traction there would be for empowering such a board (with mirror powers) outside of law, though.

Sceptical Observer said...

All very worrying, and no doubt all concerned had nothing but the purest of motives. There is however a need for balance.

In particular, we must prevent such complaints from being "weaponised" as part of other broader disputes.

It is possible to get the impression that the level of outrage in any particular circumstance is not so much a function of the act complained of as it is dependent on the personal agenda of the accuser.

For example, a female partner might overlook chronic inappropriate behaviour on the part of a male friend and colleague, but also complain zealously about political or personal enemies. In those circumstances, the drive for inclusiveness as a whole is called into question. The question that would be posed - in these hypothetical circumstances - is this: If the complaint is selective and politically motivated in this case, is the whole enterprise not then tainted? A further question: what sanction is there to be against the politically motivated accuser?

Unless we address these questions we risk the cynical abuse of HR procedure (witch-hunts, to coin a phrase) becoming a political weapon. Without careful handling, such witch-hunts may soon discredit the very concept of inclusiveness and its implementation.

I am not saying that there is no bad behaviour. Instead I am saying that manufactured outrage on the part of a politically motivated and cynical few can (and does) actively hurt the interests of those they patronisingly claim to speak for.

THE US anon said...

Sceptical Observer,

Sage words indeed (and applicable to a whole host of legal issues, including - especially - attacks on patent eligibility).

Barbara Cookson said...

If it's not a criminal offence there is not a lot you can do, that's why these people are still there and getting rave reviews in the legal directories too. If you can't take the heat get out of the kitchen. It can be quite a rewarding experience here on the outside left

Anonymous said...

Most people are decent and respectful of others in most circumstances. Thank goodness.

Where this does not happen, such people should be held to account, but as always such account should be within the laws of the land. It takes very brave and impressive people to take steps publically to address inadvertent lapses and downright abuses. Not a task for the faint hearted. But the rule of law must be respected, and if these laws are not suitable, these should be changed. Not a task for the fainthearted either. Trial by gossip or media does not seem fair or the way to go, but then again nothing about being the victim of discrimination or abuse, or even of trivial or inadvertent lapses is fair either.

Maybe we are lucky enough in the legal professions to be able to vote with our feet. It seems many are not so lucky. Exit interviews by HR should be the norm perhaps, this may help highlight issues.

Anonymous said...

There is nothing inclusive about a 'women in ip' group within such a restricted-access profession. Get real people and open your eyes for once.

Anonymous said...

Absolutely with Anonymous. I am a woman working in IP, I would not join a women-only group, it is as unhealthy as a male-only club.

I encourage those working in IP in the UK of ANY gender to get involved in IPInclusive, inclusivity should mean what it says!

Anonymous said...

There are very average women IP lawyers getting listed in legal directories; there are very average men IP lawyers getting listed in legal directories.

As a straight, white, working-class male I get all the disadvantages of not being from the right schools, but none of the privileges of being able to be part of a sisterhood or group. I am sure some would say that I already have the white male privilege (and of course as a white male I must be blind to it), but frankly we are all scratching and fighting hard to get ahead. Some just dont have a group banging our drum, just a lazy prejudice working against us that women are more "conscientious". As someone who spends substantially more time staying ahead of the law - far more than the others around me (women or men) I do wonder about that generalisation.

In the meantime I get to fight not to be the one asked to cede my place as a speaker because of the optics of not having enough women on the agenda. No pinky ring means I get asked early on..

Anonymous said...

SO: It is possible to get the impression that the level of outrage in any particular circumstance is not so much a function of the act complained of as it is dependent on the personal agenda of the accuser.

The assumption of bad faith on the part of someone reporting inappropriate behaviour is exactly what prevents people from coming forward. The power dynamics that let people get away with inappropriate behaviour in the workplace rely on the victim not having confidence that they would be believed.

What you seem to be saying is in the rest of your comment is that the odd case of someone with a political/personal agenda seeking to misuse the mechanisms for dealing with inappropriate behaviour risks undermining those very mechanisms. That may be true. But if a presumption of bad faith on the part of the accuser is allowed to creep in, then you may as well not bother having those mechanisms at all because no one will make use of them.

Anonymous said...

To anonymous 09:33 -
I think that the thing to remember about these initiatives is that they are fundamentally about making sure that everyone has the best opportunities to be the best that they can be in the IP professions. We all have things that advantage us and things that disadvantage us and we are all subject to the biases, misunderstandings and preconceptions of others. In that context, of course it isn't the case that all women in the IP professions are held back by discrimination or that all men in the IP professions benefit from privilege. But it is hard to argue that, as a broad generalisation, women, LGBTs, BAME and, yes, those from humbler backgrounds do not find it more difficult to get on. And it is worth noting that this is not only due to externally imposed discrimination or unconscious bias on the part of others, but also due to the internally-imposed self doubt that women and minority groups often have. It isn't only, or even mainly, a question of pointing the finger of blame.

In this context, groups like Women in IP are only ever going to be an approximate response to the varied circumstances of individual women in the profession. But it doesn't need to be a perfect solution. The importance of IP Inclusive for me is simply that it keeps the conversation open and hopefully helps us all to be more aware and more open-minded toward the individual circumstances of the people we encounter through our work - whatever those circumstances may be.

TheInvisibleHans said...

Inappropriate behaviour leads to good people leaving, and other good people not joining, says the Kat.

Excellent, say I.

The firm which tolerates inappropriate behaviour will not be left with good people, by this mechanism.

The firm which does not tolerate inappropriate behaviour will attract and retain the good people, and will therefore succeed, as it will contain good people.

Market forces will see to that, in this ever more competitive age.

The profession, along will all professions, will thus tend to the case where all firms inevitably contain all the good people. Those that are left with the bad people will fail through lack of competitive edge.

It is a self-organising system.

Merpel said...

Merpel would just like to highlight that the event and post were about inappropriate behavior per se, not inappropriate behavior targeted at any particular group, nor was the event women only. See para. 2: "the event was attended by a range of IP professionals of different genders and ages".

Everyone was welcome!

Furthermore, the event was particularly focused on inappropriate behavior in the workplace (for which you can read abuse, bullying, sexual harassment etc.), as opposed to the broader issue of discrimination.

Please also read the term "inappropriate behavior" as, of course, including inappropriate behavior targeted at working class white males, or indeed any individual.

Merpel is interested in practical suggestions on how any inappropriate behavior may be tackled.

Anonymous said...

The tag "women in IP" does no favours to anybody, I would remove it

Anonymous said...

OMG "8 February 2018 at 09:33:00"

I could have written that post. I thought I was alone. We should start a group and ask CIPA for funding.

It is often said that women have to work harder and be better than the men to be successful in business. I do not argue with that. I do say, however, that when you are from a 'humbler' background the hurdles can be insurmountable. The vast majority of companies/private practices never had the grace to give me an interview and some don't even bother sending a rejection. This even happened when an advertisement attracted only a handful of applicants, and was not for a training role. The job description could have been copied from my CV. Absolutely nothing wrong with my qualifications, and today, my experience.

Today, my age adds an extra barrier. Who'd have thought that a company seeking people with 'significant experience' would discount someone simply because they are older and/or more experienced that the hiring manager?

Luckily for me, there are occasionally people who will hire me. One or two even pay me a competitive/equal salary, though they are in the minority. I am now out of the job-seeking game, plodding slowly towards retirement being the go-to-guy for advice from those above me, and those heading in that direction.

IP Inclusive can never be inclusive, because there is no driver in the legal profession for change. A recent survey of barristers proved as much when the majority refused to answer the questions on educational background. They can't even collect the statistics. I do not knock those extremely competent people, including colleagues, from 'less-humbler' backgrounds than my own, for whom I have the utmost respect.

The profession discriminates against people based on background FAR MORE than any other factor.

Anonymous said...

The point about addressing 'inappropriate behaviour' targeted at working-class white males, obviously presupposes there are working-class white males to be treated inappropriately. Same applies to all those of 'working class' whatever their gender, colour or sexual orientation.

Anonymous said...

An Oxbridge bias estimated and discussed:

If anyone wants to spout about the best coming from Oxbridge:
(a) prove it
(b) explain why there is traditionally a high intake of graduates over postgraduates
(c) to anyone who responded to (a): explain why the exam pass rate is so low when the quality is apparently so high.

Andrea Brewster said...

Thank you Merpel for publicising the workshop. It was well supported and productive but it is, of course, only the beginning of many conversations on this topic. I hope that those conversations will lead to positive changes, for all IP professionals. IP Inclusive would welcome suggestions as to what those changes might include. "Ethics committees", for instance, are an interesting idea for larger organisations. HR exit interviews could also be helpful, especially if re-run AFTER the person has left and got started in a new role, when they no longer have to worry about references and the like.

On behalf of IP Inclusive, I'd like to thank everyone who shared their views on Merpel's article. Please do continue to feed through your thoughts on diversity, inclusivity and equality - and even better, get involved in the initiative, so that it truly is diverse and inclusive and able to represent the full range of IP professionals.

Like Merpel, I'd like to remind people that this was not an event for women only, nor was it focused on behaviour against any particular group. We deliberately kept our discussions broad. Yes, IP Inclusive has a Women in IP support network, and I think it's highly appropriate that we continue to do so. But we also encourage the formation of other networks for those who have particular issues that would benefit from discussion, mutual support and occasional lobbying. So far we have Women in IP; we have IP Out for LGBT+ professionals; and we have IP & ME for BAME professionals. Membership of these groups, and attendance at their events, is not restricted to the class in question; allies are also welcome and indeed encouraged, because only when we work together can we achieve real change. And as someone has rightly pointed out, we are IP "Inclusive".

If someone would like to establish a group for those from "less privileged" backgrounds, I would support that. We need to do more work on social mobility, I agree. We also need to do more on age discrimination. And there are doubtless other issues we should tackle but at present we're limited by our reliance on willing volunteers. So please, everyone, get involved if you can - if you don't like what IP Inclusive is doing, join in and help us direct our efforts more appropriately.

And finally, on the subject of resources, there was an implication that IP Inclusive is funded by CIPA. Let me put the record straight. We are "funded" (I use the term loosely; we have no money other than for specific projects) by generous donations from a whole range of sources; CIPA is but one. CIPA is just one of four founding members - the others being CITMA, IP Federation and FICPI-UK. This is a pan-professional initiative.

Andrea Brewster
IP Inclusive leader

Anonymous said...

My suggestion for setting up a group for the 'less privileged' was tongue in cheek. Firstly, it would be career suicide even coming out on the subject. Secondly, I don't believe any such groups should be encouraged. They are, of course, potentially powerful, especially when the numbers are significant (e.g. based on gender).

When it comes to minority groups, such as LGBT and BAME (women are not a minority), I wonder whether they are from more privileged backgrounds than the average IP practitioner. Is this what addresses the balance in their favour? The majority of BAME individuals are from poor backgrounds, whereas, I presume, LGBT individuals are equally spread in society. I don't know how many IP practitioners tick the LGBT box, but I'm pretty sure there aren't many BAME, black in particular, members of the profession.

Ageism is huge right now. I recently heard a comment to HR: "some of these (CV's) are in their 50's". It was for a role requiring experience. How about CIPA conducting a survey of members on their recruitment figures?

THE US anon said...

Apologies in advance for the paywall, but would this be a lead for the author of this article:

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