Michael Dorf: Do Pence’s Rules to Avoid Temptation Trammel Women’s Rights?

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Mike Pence dances with his wife Karen at the Indiana Society Ball in Washington, U.S., January 19, 2017. Michael Dorf writes that Pence does not dine alone with women not his wife or attend parties where alcohol is served without his wife. Yuri Gripas/reuters

This article first appeared on the Dorf on Law site.

Since the (re)revelation that Vice President Mike Pence does not dine alone with women not his wife or attend parties where alcohol is served without his wife, most of the critical attention paid to this story (such as this Vox piece) has focused on the resulting (arguably illegal) denial to women of equal opportunities for career advancement, with a smattering of essays (such as this Atlantic piece) slotting the furor itself into a narrative of disconnection between religious conservative America and secular liberal America.

Here I'll add a couple of observations about the phenomenon itself and then offer a thought about how someone with Pence's concerns might address them in ways that do not adversely affect women.

I'll begin by noting that while I accept at face value the assertions that the Pence practice is more common among Evangelical Christian men than among married men more generally (to say nothing of married women), there is something at least a little bit odd about that.

As between a devout married man who believes that the punishment for adultery (absent successful repentance) is eternal damnation in hell, and a non-religious married man with no particular worries about punishment in the afterlife, I would have thought that the latter would be much more tempted to commit adultery--and thus would need to take more precautions--than the former.

(I acknowledge that there is some movement against hell among liberal Evangelicals. It's hardly universal.)

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But wait, you say. The religious married man is more committed to avoiding the sin of adultery. That's fair enough, but there is no reason to think that the spouse of a person who commits adultery will be more forgiving if she is not religious than if she is religious.

Indeed, insofar as the devout tend to look less favorably on divorce, it would seem that a non-religious man has more to worry about in the here and now in the event he is apprehended in a tryst than does a religious man.

Meanwhile, having said that, I have encountered a few men (though no women) in my professional life who engage in Pence-like precautions but for a wholly different reason. It's not that they fear being tempted into sin; rather, they fear that they will be falsely accused of having a sexual relationship--either by the woman in question or by someone who claims to see something that was not in fact taking place.

One man I know will not meet with a woman alone in his office unless the door is open. Another, when traveling on business, insists that any woman traveling in the same party stay in a separate hotel. Not just a separate room--which is of course expected generally--but an entirely separate hotel.

The precautions I have just described strike me as somewhat paranoid, but they are essentially innocuous, especially because they can be applied equally to men and women. There's no real downside to leaving the office door open for meetings with men as well as women. And if there is a downside--the inability to have a confidential conversation, say--then that inability should be distributed equally. Likewise for the hotel rule.

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And that brings us to Pence. Suppose that for whatever reason, a powerful man wants to observe Pence's rule. It is easy enough, I suppose, to generalize it in gender-neutral fashion. The no-parties-with-alcohol-without-his-wife rule is already gender neutral. (Sure, Pence's wife is a woman, but that's not the sex-based line we care about.)

The other rule can easily be changed to: Never eat in a party of exactly two people; eat by yourself; or eat in a group of three or more .

That is a stupid rule, of course, and one that will lead to all sorts of pointless hair splitting. If you're traveling on business with a co-worker, does it count as eating a meal in a forbidden duo if you eat on an airplane while sitting next to each other? Or does the third passenger in the row make that an acceptable trio?

What if the third passenger is asleep and thus skips the meal? But the important point to keep in mind is that the stupidity results from the rule itself, not its generalization into gender-neutral form.

Bottom Line: If you're going to abide by peculiar rules of conduct that have an adverse impact on people in your workplace, you have some obligation to ensure that these rules do not disadvantage anyone based on sex (or any other illicit grounds).

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.