Twitter went berserk this week following a piece in the Washington Post on Karen Pence, the wife of current vice president Mike Pence. The article reminded readers of something Mike Pence said in 2002: He will not eat alone with a woman or attend an event where alcohol is being served unless his wife is present. It’s not clear whether Pence still adheres to this practice, but it raises the question: is that even legal?
Title VII governs workplace discrimination and does not allow employers to treat people differently on the basis of sex or gender. An employer cannot set the terms and conditions of employment differently for one gender than for the other. This includes all aspects of the relationship between employer and employees. Equal access to an employer, for example, is a benefit to which all employees must equally share.
Working meals with the boss could be considered an equal access opportunity that all employees, irrespective of gender, must share. An employer must have a lawful basis for classifying employees on the basis of gender. A classification for certain job-related duties or opportunities based must be based on a bona fide occupational qualification for a particular job. The sex of a worthy lunch companion does not satisfy this test. In other words, a boss cannot arbitrarily decide to restrict lunches to same-sex only.
Defenders say Pence’s reasoning is not arbitrary but instead based upon well-founded fears of false accusations of sexual harassment or even fear of temptation which may cause an overstep of professional boundaries. Others reason that there is a legitimate fear of the appearance of an inappropriate sexual liaison which would lead to reputational harm.
However, expressly applying different rules to men and women is obvious sex discrimination. There is no federal law allowing for differential treatment based on men’s inability to control themselves or protecting men from office gossip. The spectre of these fears continues to harm the ability of women to perform on an equal platform with their counterparts. Because these concerns have historically shut women out of equal opportunities in the workplace, civil right laws like Title VII serve as a counterweight. It’s no secret that often “just a working lunch” becomes the forum where big decisions are happening. Women cannot and should not be shut out.