For whom is the Future of Law female-free?
The irony is that four days ago I was a panelist at the Microsoft Diversity in IP Law Summit, also at Stanford.
1. "Women and Minorities in IP Law" and TECMYs
In connection with preparing for the Diversity Summit, I thought about that word "Minorities." I remembered that when I was at Bell Labs in the early 1980s, I heard that Asians were not considered minorities by the Labs when it reported numbers to the Equal Employment Opportunity Commission. Whether this was true or rumor, it made sense. Bell would not have increased diversity by hiring more Asians: the fraction of Asians at Bell at all levels was higher than it was in the general population.
It seemed to me that a more productive discussion of diversity in IP Law would be possible if there were a shorthand ethnic category for WHITE or ASIAN. Maybe it could be called
Clients for IP law in the Bay Area seem to me to be almost all: TEC (white or Asian), Male, and Young -- under 35, say, or maybe by now it's 40. (Sergey Brin, for example, will be 40 this summer.) I propose calling this subgroup TECMY, pronounced TEK-mee.
TECMY is not the same as that patent law phrase, "having a technical background." A female with a PhD in Physics (like me, for example), a 60-year old male white electrical engineer, a male Latino geneticist or a male African-American computer scientist, are all examples of non-TECMYs.
2. TECMYs and Client Comfort
When I was in law school in the 1970s, partners from fancy law firms would freely say that they didn't hire women because they'd lose clients: clients like to talk to people who "look like them."
Nowadays (a mere 40-odd years later), the good news for women and minorities with law degrees is that the people who hire fancy law firms -- mostly corporate executives and corporate inside counsel -- are no longer exclusively white males. But in Silicon Valley, in tech companies, they are pretty much all TECMYs.
This affects the non-TECMYs both in hiring and in opportunities for advancement. It also affects decisions whether to stay in IP law beyond that entry-level job or to change careers. The effects are due only partly to what the non-TECMY attorneys think or experience themselves. It is also due to their employers' belief that the clients "are comfortable" only with mirror-image lawyers.
3. Looking for Excellence
We all know about Carly Fiorina and Meg Whitman at HP, and Marissa Mayer formerly at Google now at Yahoo, and Sheryl Sandberg at Facebook. What happens, though, if you look in those companies for the next highest ranking female? How many men do you pass on the way down? The situation for non-TEC minorities is worse, and much worse for female non-TECs.
I asked the wonderful Stanford Law School research librarians for help, and George Vizvary found me Julianne Pepitone's CNN Money article from March 18, 2013, and its fascinating interactive graphics. The article is entitled "How Diverse is Silicon Valley?" and the lead image is a map with a dot for Silicon Valley and in big letters the words "Boys' Club." Pepitone didn't get the idea from me: it springs to the casual observer.
Too often I have heard from women lawyers that, if they walk into a meeting with a male non-lawyer, the male lawyers in the room talk exclusively to the non-lawyer.
Part of the problem, as I see it, is that so many start-ups start up with a group of buddies of college age and even less mature. They may know, vaguely, that companies are not supposed to discriminate, but if they think about it at all, they think that the law applies to banks and car manufacturers -- stodgy places with closed-minded people -- not to them. They are hiring for BRAINS, for ability to THINK OUTSIDE THE BOX, for CREATIVITY. The fact that every hire looks just the like the previous one is not because they discriminate for any reason of prejudice or other evil, it's just that they find that the people with the right stuff all come from one demographic subgroup: TECMY.
Maybe, to recall Larry Summers infamous remarks, maybe in certain fields TECMYs on average have more ability than non-TECMYs on average. (The blogger mathbabe has an excellent post about the Larry Summers' comment, if you need reminding.) My answer to the Larry Summers' kind of thinking has always been "So what?" Let's assume for the sake of argument that the statement about the averages is true. It is also utterly irrelevant. Neither Harvard nor any tech start-up nor any IP law firm nor IP legal department is trying to hire "average.'" They are all looking for excellence.
If you look for excellence only within a demographic subset, you are going to miss out.
The tech community of Silicon Valley, by overwhelmingly favoring TECMY people for its employees, executives and lawyers -- and, today, speakers for conferences in FutureLaw -- is missing out.
It is time for change.
Forty years ago I did not expect that forty years later I would be writing something like this. Let's hope it doesn't take another forty years before I can say, "Times have changed."