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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.
Some fear false accusations of sexual harassment, against which they can’t defend themselves because there aren’t any witnesses. Assuming these fears are legitimate (although some may be more about anxiety about women in leadership roles than marital fidelity), surely there are ways to alleviate them that do not curtail potentially productive business interactions?
The Iowa Supreme Court’s dubious ruling against the “hot hygienist”
An Iowa dentist made headlines a few years ago when he fired his longtime hygienist because his wife was jealous. The dentist directed sexually inappropriate comments at the (married) hygienist, complained that her scrubs were too tight and revealing, and asked questions about her sex life. The hygienist didn’t reciprocate with sexual innuendo, did not engage in a romantic or sexual relationship with the dentist, and put on a lab coat whenever he complained her clothing was “distracting.”
Nonetheless, the dentist fired the hygienist. The dentist’s wife viewed her as a “big threat” to their marriage, and the family pastor agreed that firing the “hot” hygienist was the best course of action. When the hygienist’s husband called the dentist to ask why his wife had been fired, the dentist reassured him that she was the best assistant he ever had and had done nothing wrong or inappropriate. But he was getting too attached and “feared he would try to have an affair with her down the road if he did not fire her.” In a shocking 7-0 opinion, in 2013, the Iowa Supreme Court held in Nelson v. Knight that the hygienist’s firing did not constitute sex discrimination under Title VII of the Civil Rights Act of 1964.
Think for a moment about the absurdity of this ruling, given the existence of a statute that prohibits employers from making employment decisions because of an employee’s sex. Is there any doubt that Melissa Nelson could have kept her job if she was a man? The hygienist got fired for being an attractive woman, plain and simple. The court did not see it that way, characterizing her firing instead as something that grew out of a particular interpersonal relationship and situation, falling back on the right of an employer to fire an employee for any nondiscriminatory reason.
But even that deeply misguided court would understand that a policy or practice of excluding or avoiding female employees in general is unlawful. In its opinion, the Iowa Supreme Court distinguished between an “isolated employment decision based on personal relations … driven by individual feelings and emotions regarding a specific person” and a “decision based on gender itself.” And if an employer “repeatedly took adverse employment actions against persons of a particular gender, that would make it easier to infer that gender … was a motivating factor.”
Vice President Pence’s “policy” applies to all women — not just one in particular. That is why it runs afoul of Title VII.
Men who isolate themselves from women are in the thrall of stereotypes
Men needn’t isolate themselves from women in the workplace out of fears of false allegations of harassment. The vengeful, spurned woman who ruins an honorable man’s life (think Demi Moore in Disclosure) is a backlash caricature with an outsize impact on the popular imagination. False claims of harassment are exceedingly rare and impossible to prove; even meritorious claims of harassment are hard to prove. Men shouldn’t worry about being led unto temptation because, well, it is entirely within their control whether to harass a subordinate or initiate an affair.
We have a president who brags about grabbing women by the pussy — and a vice president who won’t even have dinner with them. These are two sides of the same coin, both reflecting the fundamentally unequal sphere working women inhabit because of male behavior.
As for the prototypical jealous wife? Perhaps some counseling is in order — and some self-reflection about why either partner in the marriage would perceive the relationship to be so vulnerable as to be undermined by the mere proximity of other women outside the wife’s presence. In any case, women in the workplace have protected civil rights that outweigh such concerns.
Women have been shut out of equal employment opportunity for all of history. It’s long past time the doors to power and opportunity were opened, whether after hours, on a trip, or, gasp, at a working dinner with a male boss. After all, as the song “The Room Where It Happens” from the musical Hamilton puts it, sometimes “decisions are happening over dinner.”
Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law. Her most recent book is Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace. She is a regular columnist for Justia’s Verdict.
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