The Pence Paradox
Vice President Mike Pence has a standing rule: He will not take a closed door meeting or have a meal alone with a woman who is not his wife. In the current #MeToo era, this may be a tempting approach for employers concerned about sexual harassment claims. Unfortunately, adoption of this one-size-fits-all solution could create a whole new problem for employers.
According to a survey conducted this year by LeanIn.Org and SurveyMonkey, nearly half of male managers say they are uncomfortable participating in a work activity involving mentoring or socializing with women. According to the survey, “Senior men are 3.5 times more likely to hesitate to have a work dinner with a junior-level woman than with a junior- level man—and five times more likely to hesitate to travel for work with a junior- level woman.” Along similar lines, a 2010 Harvard Business Review research report found that many men avoid sponsoring women in the workplace for various positions and assignments “because sponsorship can be misconstrued as sexual interest.”
These numbers present problems on both sides of the employment equation. For female employees, these surveys suggest a substantial loss of mentorship and networking opportunities. Just as troubling, employers following the Vice- President's lead may expose themselves to further risk in the form of a discrimination claim.
The California Fair Employment and Housing Act ("FEHA") prohibits employment practices that discriminate based on marital status, sex, gender, gender identity, gender expression, and sexual orientation (among others). Cal. Gov. Code Sec. 12900 et seq. While employers generally think of the "typical" discrimination in terms of hiring or firing based upon a protected class, FEHA broadly defines that protection to include "discriminat[ion] in compensation or terms, conditions or privileges of employment." Cal. Gov. Code Sec. 12940(a).
Employers who adopt the "Pence Rule" arguably run afoul of FEHA’s protection because that rule treats men and women differently–and that is discrimination. It's another variation of the cliché whiskey and cigar night. While there is nothing inherently unlawful about such an event, it can serve as evidence of a discriminatory culture if the employer only invites its male employees to participate. Because what happens in that smoke-filled room? Relationships are cemented, deals are negotiated, and careers are made. When an employer closes the door on women, even with the intention of avoiding the potential of harassment or a hostile environment, it is telling its employees that they will be treated differently based on their gender.
While the current environment may create a knee-jerk reaction by employers to avoid sexual harassment claims, they must be aware of the unintended consequences of being unduly risk- averse. Frankly, isolating and excluding women in the workforce, irrespective of intent, is legally unjustifiable and exposes the employer to claims of discrimination. Furthermore, it may project to the female employee the impression that she is not as valued as her male counterparts - and that leads to unnecessary and costly employee turnover.
So what is an employer to do? Sheryl Sandberg offered one solution: "Don’t want to have dinner alone with a female colleague? Fine. But make access equal: No dinners alone with anyone.... Whatever you choose, treat women and men equally." But there may be an even better way: Treat women as the professionals they are and with the respect and dignity they deserve. Don't take a step back out of fear; instead, continue to move forward towards a culture that fosters women's equality in the workplace. That’s what’s best for our employees and our bottom line.
Stephanie M. Stringer, Hall Griffin, Associate
John A Cone, Jr., Hall Griffin, Of Counsel