December 7th, 2018
Robin Shea at Constangy
This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).
Avoid women at all costs?
Better to be prudent with everybody.
But the message wasn't quite what you might expect. Rather than "Avoid harassment at work," it was "Avoid women at work."
Hey, wait a minute!
According to the article, "No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings."
As an employment attorney quoted in the article says, "[T]hose men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint."
(Hat tip to my law partner Jon Yarbrough for sending me the Bloomberg article.)
Giving these Wall Street guys the benefit of the doubt (that they're not sexual harassers but just terrified of the current legal climate), I can sympathize. Since #MeToo really got going a little more than a year ago, we have seen some "opportunistic" claims of sexual harassment that have not been supported by the evidence, and I'm sure those -- as well as valid claims -- will continue to increase.
Readers of this blog know that I have defended the so-called "Mike Pence Rule." The Vice President reportedly (1) doesn't have dinners alone with women, and (2) doesn't attend parties unless his wife comes with him.
Vice President Pence has been mocked for these practices, but I think his rule makes sense, particularly since women on his staff have defended him and said that his practices haven't deprived them of equal opportunity. And, as far as I know, the Vice President has never been accused of sexual harassment. For a high-profile man in this day and age, that's saying something.
I think the Mike Pence Rule, with a few tweaks, is a good one for anyone -- male or female -- who wants to avoid accusations of workplace harassment, or who easily succumbs to temptation.
The following is my attempt at a more "EEO-friendly" Mike Pence Rule, also taking into account the concerns of the Wall Street guys:
Rule 1: Don't have one-on-one dinners with colleagues unless you're on a business trip together. Group dinners are fine. That will give you plenty of witnesses.
Rule 2: If you are on the road with a colleague and are having dinner together, do it in a well-lighted restaurant with attentive wait staff. Don't go anyplace dark and "romantic." Don't go anyplace with a "sexual" theme. Limit your conversation to talk about work and your family. (But not about how your spouse doesn't understand you.) The attentive and clean-cut wait staff can be your witnesses.
Rule 3: "Don't sit next to women on flights"? Ridiculous. There will be plenty of witnesses to defend your honor if you are falsely accused of sexual harassment on an airplane. Including that stranger in the third seat in your row. If you're really too paranoid to sit next to your colleague, at least get seats across the aisle from each other so you won't be touching but can still talk. That way, the flight attendants and the strangers in the center and window seats on both sides can be your witnesses.
This may be the only time that flying coach is better than flying first or business class. More witnesses.
Rule 4: "Book hotel rooms on different floors"? What's the point? Do hotels not have elevators? And stairs? If your colleague wanted to falsely accuse you of sexual harassment, could he or she not claim that you took the elevator or stairs to his or her room? Do hotels not have hallway surveillance cameras that would show whether you were or were not at his or her door? Do those cameras not operate whether you are visiting a room on your own floor or visiting a room on a different floor?
That said, if you have to meet with your colleague at the hotel to discuss business, do it in the hotel lobby or restaurant, not in a private room.
Rule 5: "Avoid one-on-one meetings"? Good luck with that. You can't really avoid one-on-one meetings, of course, but you can hold them in an office with the door open, at a cubicle, or in a glassed-in conference room. Occasionally a private, closed-door meeting will be necessary, but those should be the exception rather than the rule. And it's a good idea to open the door as soon as the confidential part of the discussion is over.
Rule 6: Don't have one-on-one meetings at your home. Too much opportunity for mischief . . . or false accusations. Ask Neil deGrasse Tyson.
Rule 7: Watch your alcohol consumption whenever you're with co-workers. This time of year, we preach so much against alcohol that I feel like Carrie Nation. I really do like alcohol. (Is it 5 o'clock in Uzbekistan yet?) But it doesn't mix well with work, whether the "work" is actually getting some work done, putting in your appearance at the office holiday party, or unwinding after a hard day on a business trip. One or two drinks may be all right for most people, but if you must drink more than that, excuse yourself, go to your room, turn on your TV or check in with your spouse, and continue your drinking alone.
No. 8: Don't blame it all on women. Yes, most #MeToo accusers are women, but plenty are men. Ask Kevin Spacey. If you want to stay out of trouble, follow these rules with everybody. You'll protect yourself more thoroughly, and an "equal opportunity loner" can't be accused of sex discrimination.