Vice President Pence’s “never dine alone with a woman” rule isn’t honorable. It’s probably illegal.

Joanna L. Grossman · Monday, December 04, 2017, 11:32 am

An employment lawyer weighs in.

The wave of sexual-harassment scandals has led some commentators to suggest that the “Mike Pence rule” deserves a second look. In March, law professor Joanna Grossman explained why the rule is not just bad business practice: It may be illegal:

“I don’t work with women. If they’re attractive, I’m too tempted. And if they’re not attractive, what’s the point?”

A male partner at a law firm casually made this pronouncement one day at lunch, hardly looking up from his plate. Everyone laughed and went back to eating — in the rough-and-tumble world of DC law, it wasn’t even the most obnoxious thing said that day. But this is no laughing matter for the women whose career opportunities are impeded by men who cavalierly dismiss half of the labor force and insist that they’ve behaved honorably by doing so.

This issue was thrust into the news when the Washington Post ran a piece on Karen Pence, the wife of our current vice president, and reminded readers of something Mike Pence said in 2002: He does not eat alone with a woman or attend an event where alcohol is being served unless his wife is present. The Twittersphere lit up like a Christmas tree with jokes and rants about Pence’s wife-rule. It’s not clear whether Pence still adheres to this practice, but there are men who do.

As the Atlantic observes, such arrangements are especially common within marriages between religious conservatives of various stripes. (It need not be only men who follow such strictures, but the emphasis is often on male temptation.) On Capitol Hill, where long days and late nights away from the family are part of the job, some Congressmen will not travel alone in a car with a female staffer, the National Journal has reported. Some politicians set gender-neutral rules that have a side effect of keeping them from being alone with women — such as excluding any staff from the office before 7 am or after 7 pm — but others clearly apply special rules to women.

To be sure, a politician’s declining to dine alone with a woman does not fall in the same category as a law partner refusing to work with women (or at least musing about refusing to work with women). Nonetheless, the practice described by Pence in that 2002 interview is clearly illegal when practiced by a boss in an employment setting, and deeply damaging to women’s employment opportunities.

Title VII, which governs workplace discrimination, does not allow employers to treat people differently on the basis of certain protected characteristics, one of which is sex. This means that an employer cannot set the terms and conditions of employment differently for one gender than for the other. This includes any aspect of the relationship between employer and employees — extending to benefits like equal access to the employer.

By law, working dinners with the boss could be considered an opportunity to which both sexes must have equal access

Employers are not permitted to classify employees on the basis of gender without proof that sex is a bona fide occupational qualification for a particular job. A Pence-type rule could never satisfy this test. A male boss cannot casually cordon off certain jobs, tasks, or opportunities for men only. (I am assuming here that Pence does occasionally dine with men — table for two — without his wife present.)

Employers are also not permitted to base employment decisions on gender-based stereotypes — including the stereotype that women are temptresses, or incapable of having purely professional relationships with male bosses or co-workers.

Pence’s defenders said he was merely acting prudently, and expressed amazement at the all the fuss. Yet we know that women pay a heavy price for behavior that either resembles his or falls on the same continuum. We know this from anecdotal reports and surveys of women who report exclusion from travel, events, or one-on-one meetings with male bosses; from cases in which men have fired female subordinates to assuage jealous wives; and from decades of employment-discrimination litigation in which we get a picture of the everyday ways in which workplaces remain unequal for women.

Why might men refuse to work with women, either generally or one in particular? Some fear that temptation will cause them to overstep a marital boundary by having a consensual affair — or a legal boundary by engaging in unwelcome harassment. Others fear just the appearance of a sexual or romantic liaison — which could provoke wifely jealousy, concerns about sexual favoritism, or reputational harm to the male boss who might wrongfully be labeled a creep.

Read more
https://www.vox.com/the-big-idea/2017/3/31/15132730/pence-women-alone-rule-graham-discrimination