This is the third part in our series exploring gender imbalance in the patent attorney profession here in Australia. (Click here if you missed out on Part 1, or Part 2).

In these modern times, it may be difficult to imagine the causes behind the apparent glass ceiling, and revolving door, particularly within the private practice. However, the latest organisational and anthropological research provides a number of insights, including unconscious bias, a perceived lack of fit within senior positions, and cultural and explicit biases.

Unconscious Bias

One of the most famous experiments in relation to unconscious bias involved Howard and Heidi Roizen: both highly successful venture capitalists, entrepreneurs, and highly proficient in networking.[1] Harvard Business School students participating in the experiment were randomly assigned to each persona, rating Heidi or Howard in terms of likeability, competence, and effectiveness. The results were stark. Whilst Heidi and Howard were generally both considered competent, Heidi was rated less likeable and fewer students were prepared to work with her. Combined with many other studies, is it apparent that women in business face a trade-off between perceived likeability and competence; that is, women may be seen to have one, but never both, traits.[2]

Translating to the patent attorney context, this pervasive form of unconscious bias can go some way to explaining the dearth of women in the industry. It presents a Catch-22 situation, particularly in organisations with opaque promotion processes which evaluate “competence” and “cultural fit” (read “likeability”): female attorneys perceived as competent are less likeable, whereas females who are likeable fail to “exhibit” the requisite competence. However, unconscious bias and the notion of the ideal patent attorney (i.e. stereotypical patent attorney) as male is not limited to the likeability-competence paradox.

In fact, relevant to the role of a patent attorney is the unconscious bias that scientific ability is related to gender. A study by Reuben et al in which participants were required to hire a candidate to perform an arithmetic task were twice as likely to hire a male when only presented with information related to the candidate’s appearance (which made gender obvious), and that this discrimination was pervasive even in the face of self-reported results on previous arithmetic tasks.[3] As a patent attorney is required to possess and indeed exhibit, a high level of scientific ability, there can be no doubt that the perception that such an ability is a predominantly male characteristic negatively impacts female practitioner outcomes. Consequently, it is posited to effect the promotion of females in the industry, as well as client attraction and retention rates – which in turn also influence female career mobility.

Other experiments relating to unconscious bias show that women are more strongly penalised for making mistakes when they are in counter-stereotypical roles,[4] women suffer when they exhibit a display of emotion in the workplace whilst men benefit from similar behaviours,[5] among many others.

Accordingly, when viewed through the patent industry lens, a traditionally male-dominated and conservative industry, it is clear that unconscious bias alone places females on a tilted playing-field. Indeed, such unconscious bias is also pervasive in terms of a perceived lack of fit of females within senior positions in the industry.

Perceived lack of fit within senior positions

Perceptions of fit within senior positions can be both held by the individual, and held by the organisation, or promotional group/committee, and both appear to influence imbalance in the patent industry in Australia.

In terms of the former, an individual can self-select out of a career trajectory based upon the prevalence (or lack thereof) of similar role models with senior ranks. In the case of females within the patent attorney industry, those occupying senior positions provide counter-stereotypical role models, that is, role models which run counter to the normal stereotypical male attorney. A dearth of counter-stereotypical role models, for example as shown in the statistics in Part 2, is proven to contribute to this form of self-motivated attrition.[6] Indeed, in less diverse workforces, minorities are more likely to leave.[7]

Self-selection can also be influenced by phenomena such as tokenism and “gender hierarchy threat”.[8] For example, tokenism, that is the existence of fewer than a “critical mass” of females within a workgroup, can be more damaging than a heterogenous male group.[9] One explanation for this can be found in research conducted by Hoyt and Simon, whose findings showed that women exposed to high-achieving females exhibited lower self-perceptions and leadership aspirations.[10]

Moreover, there is an entrenched notion that there simply aren’t enough women with the “strengths” or who have attained sufficient “merit” to warrant promotion. This is where the lack of fit for female attorneys within senior ranks can be perceived negatively during promotion. Such a notion, however, needs to be examined with care, as the term “merit” is often defined as including some opaque form of “fit”; or as once eloquently put by an industry professional: a “no d*#^-heads policy”. As Dr Jennifer Whelan (Melbourne Business School) states “[d]iscrimination is actually integral to a meritocratic system. A merit-based system discriminates on the basis of how much “merit” a person has – assuming the pre-condition that everyone has equal opportunity to acquire it – and favours those who have more of it. Or more precisely, are perceived to have more of it. This is where the trouble starts. How are perceptions of merit shaped and influenced?”.[11]

Consider also, the attitude that women do not fit in the upper positions of private practice because “… women just don’t bill”. Researchers of the Wharton School investigated such an issue in relation to two of the largest stockbroking firms in the United States.[12] Women earned significantly less than men in commission based sales which prima facie “established” that women simply didn’t sell as much. However, an in-depth analysis of personnel histories, trading and asset records, tested against a multitude of hypothesis revealed that in fact – that there was no difference in productivity. The sole reason was “women were given worse-performing accounts … when women were given more valuable accounts, the gender gap in performance disappeared”.[13]

Indeed, recent research supports such a “meritocracy paradox”; that is, organisations at pains to emphasise meritocratic promotion and incentive schemes are actually more implicitly biased. A study by Castilla and Benard showed “managers in that organization [with an organisational culture that promotes merit over one which does not] may ironically show greater bias in favour of men over equally performing women in translating employee performance evaluations into rewards and other key career outcomes”.[14]

Accordingly, a subtle but harmful bias that women do not “fit” within senior patent positions is also posited to contribute to the continuing imbalance experienced in Australia.

Cultural and explicit bias

Whilst unconscious biases and perceptions play a large part in gender imbalance, one cannot ignore the prevalence of cultural and explicit bias within the industry.

As mentioned above, the concept of “merit” assumes a level-playing field where everyone has access to the requisite opportunities necessary to succeed. One such opportunity is the access to informal networks required within the industry to attract and retain clients, access employment opportunities and promotion. However, (rightly or wrongly) given that women are ultimately still responsible for the majority of caring in Australian society (children and the elderly),[15] it is simply not reasonable to expect that they will have the same access to informal networks and networking opportunities conducted after hours. Moreover, as informal networks are established primarily upon the premise of “likeability”, women tend to be excluded in view of the likeability-competence paradox discussed above. Furthermore, the World Economic Forum describes the innate preference of an individual to gravitate towards “people like them”, another reason women find it difficult to access informal networks within the industry.[16]

Certainly an underreported and unspoken issue in the industry is “everyday sexism”[17]. In her lecture to the London School of Economics, Laura Bates describes “everyday sexism” as the trivialisation and normalisation of sexism in terms as banter, jokes, and culture.[18] As this type of culture is not typically reported, it is difficult to quantify in terms of the patent attorney industry in Australia. However, suffice to say Bates has accumulated an overwhelming body of evidence which cuts through industries, workplaces and jurisdictions in her “Everyday Sexism Project”. Therefore, one can only be naïve to assume that a male-dominated industry such as the patent industry, would be immune. Indeed, such a culture has the effect of alienating counter-stereotypical role models, where present, and contributing to female attrition rates.

In any event, the combination of unconscious bias, perceived lack of fit, and cultural and explicit bias, present significant barriers to the female patent attorneys wishing to reach seniority in Australia. Accordingly, it is undeniable that the profession does not exhibit a level playing field. Nevertheless, interventions at the organisational level present an opportunity to realise tangible change – something we discuss in our next and final part in this series.