Why the ‘Pence Rule’ Is a Bad Business Practice

In the wake of ongoing sexual misconduct allegations in Hollywood, Congress and the media, some male bosses are thinking of adopting what is known as the “Pence Rule.”

Common among evangelical Christians, the rule is based on the practices of Southern Baptist minister Billy Graham, who refused to eat, travel or meet alone with any woman who was not his wife; — the Modesto Manifesto.

The rule gained new attention earlier this year when it was revealed that Vice President Mike Pence follows a variation of it, refusing to dine or work late alone with women, or even to attend events where alcohol is served without his wife.

But what works for Billy Graham — or even Mike Pence — could get you in a lot of legal trouble.

Treating Men and Women Differently

The Pence Rule, by definition, means treating male and female employees differently. Under a strict version of this principle, a man in management could privately meet with another male employee, but not a female one. Anyone who spends time in an office knows that often the really important conversations in the workplace occur with the door closed.

I remember being informally mentored by a powerful partner at the first law firm I worked for. I recall a handful of times being with her in her office talking about assignments, door open, when the conversation moved into a more sensitive areas. These were often areas where you learned how the firm really worked, information that can help a young lawyer successfully move up the ranks. I always knew when things were getting really good when she’d get up and shut the door. Time to really talk.

Under Billy Graham’s stricture, this cannot happen with a female colleague. This prevents women in the workplace from getting opportunities to talk with decision-makers, provide input on important projects and handle sensitive topics. And it implicitly defines them by their sexuality, foreclosing any opportunities to be treated simply as professionals.

To make matters worse, there’s no evidence that it would prevent sexual harassment at your company. After all, men have harassed women with unsolicited photos sent online, inappropriate emails and even phone calls.

Shutting Women Out Is Discrimination

So what can you do to protect yourself and your company from allegations of sexual harassment?

First, have a culture that treats women as equals and strongly discourages sexual harassment. From a legal standpoint, having anti-harassment training and reporting procedures in place can help provide some protection against sexual harassment claims, though the evidence is mixed on whether these policies actually help reduce harassment.

By comparison, the Pence Rule does not provide any legal protection against a harassment or discrimination claim. To the contrary, it would more likely be used against you in court.

A classic example that has come up in many discrimination cases we’ve seen is the all-male golf trip. Now, there’s nothing inherently unlawful about a company sponsoring a tournament featuring only male golfers. But if the company hosting the tournament only invites men to participate, that can serve as evidence of a discriminatory culture.

Because what happens on the golf course? Friendships are made, deals are cut, and careers are advanced. Shutting women out of those opportunities suggests a culture in which men are given preference over women and all manner of company decisions. These sorts of activities can serve as strong evidence against the company facing a lawsuit in which a woman claims that she was treated differently than her male coworkers simply because of her gender.

The same would happen with a boss who regularly followed the strictest form of the Pence Rule. Men meeting alone with that boss would be able to talk informally, learn company news that hasn’t been made public yet and develop a friendship that allows them to advance. A woman who can only meet with her male boss with other people present won’t be given those same opportunities. The Pence Rule would be Exhibit A in that discrimination case.

How a Strict Pence Rule Would Play In Court

How would this work as a legal matter? Here’s an example. A woman in a company is one of several rising stars on the management team. For a time, there are a number of highly qualified female entry level managers. But within a year of a new CEO taking over, one who follows the Pence Rule, all of the women leave except one.

The company decides to add a new senior vice president role, one that reports directly to the CEO. The female manager, on paper, is the most well qualified. She’s been at the company the longest and recently closed one of the largest deals for the company this year. She applies for the position along with two men.

The new position would be a potentially career-changing advancement. In addition to an additional $100,000 in salary per year, the position comes with an equity stake in the company and would be very high profile within the industry. The CEO offers the spot to a more junior man. Incensed, the female manager storms into the CEO’s office, barely able to contain her anger, to ask why. Caught by surprise, all the CEO can stammer out is that the male manager is a “better fit.”

She sues the company claiming that the CEO denied her the position, in part, because she is a woman, something made illegal by Title VII of the Civil Rights Act of 1964. The CEO denies that sex had anything to do with it. He says he made a “gut-level” decision about who would be the best candidate.

The court has to decide who is correct. If a judge or jury finds in favor of the woman, the company could be liable to her for damages done to her career, including any lost wages, which in this case climb to well over $100,000 year. The company would also have to pay her attorney fees to boot, which could also be well over $100,000 year. Not to mention the bad press generated by the lawsuit.

Because there is no direct evidence in this case, the court has to look at the circumstances to determine if the female manager is correct that sex played a role in the CEO’s decision.

This is where the Pence Rule comes in. It does not mean an automatic loss for the company. But it put the company in a bad spot because here we have an explicit company policy in which men — who can dine along with the CEO, but women can’t — are treated more favorably than women. Is it possible that this male CEO and Pence Rule follower preferred a man to be in a leadership position? You bet. Especially when the best justification he can offer is that the less-qualified man was a “better fit.”

The Pence Rule seems like an easy fix for men who are concerned about facing sexual harassment claims, but there’s an easier solution: Don’t harass women. Don’t make comments on how they look or dress. Don’t ask invasive questions about their romantic partners or make crude jokes. Don’t touch them, other than a simple handshake. Don’t make passes at them. Treat them with the same professional respect that you do your male coworkers. These are not hard rules to follow.

The Pence Rule, on the other hand, won’t help. It’s bad for companies, bad for women and would only make it more likely you’ll get sued.