In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should intellectual property (IP) serve as a defense for the company’s employee selection? This question has never before been addressed in the literature, and as it currently stands, employment discrimination law does not consider IP in any capacity. Accordingly, this paper is the first to examine bridging the worlds of employment discrimination law and intellectual property law. It suggests including considerations of IP in the employment discrimination jurisprudence. The proposed mechanism for integrating these two areas is through an “IP Defense” which would require an employer defending an employment discrimination case on the basis of IP to establish that (1) it owns IP rights, (2) there is a relationship between the IP and the business practice that resulted in the employee selection decision, (3) the job description is tied to the IP, and (4) there is a direct financial correlation between the IP and the company’s business success. It requires balancing, on a case by case basis, IP rights and antidiscrimination policies, through the existing employment discrimination framework of Title VII.
Elizabeth A. Rowe, Intellectual Property and Employee Selection, 48 Wake Forest Law Review, 25 (2013).