‘The Pence Policy’ : Male-female interaction rule may have pitfalls for employers

When The Washington Post published a profile of Karen Pence, wife of Vice President Mike Pence, in March, there was a brief anecdote near the story’s end that sent the internet into overdrive — a revelation that 15 years ago, the now-Veep told another interviewer that he never eats alone with a woman other than his wife.

Aside from the usual political haymaking, the policy sparked controversy because of its potential to negatively impact any women that Pence has employed during his work in government. If male subordinates, but not female ones, are able to get one-on-one time with the boss over lunch, those personal interactions can give male colleagues a huge leg-up when it comes to winning promotions.

The Pence story struck a collective nerve because the same dynamic would apply to any male manager or executive at any company or law firm. Many women, in response to the story, complained about having to navigate around the same impediments in their own workplaces. Now a new survey published by The New York Times this month has confirmed that such self-imposed boundaries are quite common for married people across the country.

The survey, conducted for the Times by the pollster Morning Consult, showed that 22 percent of men and 25 percent of women said that it was inappropriate to have a work meeting alone with a member of the opposite sex who is not their spouse. Those numbers climbed to 38 and 29 percent for driving in a car alone, and 44 and 36 percent for having lunch alone. The numbers climbed higher still for (presumably) after-work activities such as having dinner or having drinks.

For the Pence family, and some others, these rules are grounded in their religious faith. But many of the survey respondents said their boundaries were motivated by concerns about sexual harassment. Many women said they feared being subjected to it (although other women said their job demands didn’t afford them the luxury of being able to set such boundaries). Men expressed fears that they might face false accusations of harassment.

Between Scylla and Charybdis

Companies have a legal obligation to take efforts to ensure that their workplaces are free of sexual harassment, an imperative most take pains to impress upon their employees. But those employees may, by taking sexual harassment prevention policy into their own hands, create an environment in which a company—including, potentially, law firms—is unwittingly left exposed to lawsuits for failing to promote female employees in an even-handed manner.

The ability to interact with bosses or company executives one-on-one can be an important means of both mentoring and networking. Given that the existing leadership in many companies is still overwhelmingly male, the inability to build those kinds of personal relationships is sometimes cited as a disadvantage that can quietly impede a female employee’s career advancement.

“That’s probably in this day and age a legitimate concern, because HR people drill it in employees’ heads not to be alone with people of the opposite sex, and there are still more male managers than female ones,” said Christine Gantt-Sorenson, the employment law practice group leader with Haynsworth Sinkler Boyd in Greenville, South Carolina. “I think employment lawyers and HR people make these people gun-shy.”

Gantt-Sorenson, who represents employers, says that she counsels her clients to avoid ever having managers meet one-on-one with employees, for reasons that go beyond sexual harassment concerns, although she said there are situations where such policies are unrealistic. Most employers, she said, haven’t really thought about how policies geared toward preventing sexual harassment might impact women’s career advancement prospects.

But the fact that a policy was created with good intentions wouldn’t shield an employer from a sex discrimination lawsuit, Gantt-Sorenson said. Companies could still be exposed to liability under what’s known as the disparate impact theory, which holds that ostensibly neutral policies are generally illegal if in practice they impose a disproportionately negative impact on a protected class of workers.

Double standard could suggest bias

Mason Alexander, an employment law attorney and managing partner of Fisher & Phillips’ Charlotte, North Carolina, office, said he had not been involved in any cases where such policies against one-on-one interactions had led to discrimination lawsuits, but in principle they could be the basis of such a claim. Alexander, who is also licensed in South Carolina, represents employers. He said he had not seen any instances where companies had proactively crafted any policies to deal with the issue.

“I think that this something that their HR departments could think about, and perhaps they don’t necessarily need formal policies here, but perhaps some sort of guidance,” Alexander said. “What happens sometimes is you get worried about one thing and adjust your conduct to try to deal with that, and you end up stepping in something else.”

But Josh Van Kampen, an employment law attorney in Charlotte who represents employees, argues that concerns about false allegations of sexual harassment are ill-placed, since an employee who is truly concocting an allegation could do so just as easily even in the absence of any one-on-one lunches. Conversely, any policy that disadvantages female employees would present a serious risk of a sex discrimination lawsuit.

“In general, any sort of double standard applied in the employment context across genders is problematic, and this would be no different,” Van Kampen said. “If I’m bringing a failure-to-promote sex discrimination case, Exhibit A would definitely be the double standard that that a manager applied in terms of one-on-one interactions with men as opposed to women, because it suggests a serious bias, or at least distrust, with respect to female colleagues.”

Companies would be prudent, it would appear, to ensure that policies are consistent, and gender-neutral in practice as well as in theory. Male employees’ personal rules against going to lunch with a female subordinate may not even do anything to prevent incidents of actual harassment.
Alexander noted that the men with an eye toward office dalliances are probably the least likely to construct such boundaries in the first place.

By: David Donovan