Bloomberg just published a story documenting candid interviews with senior Wall Street executives who say they fear that hiring women will increase their exposure to Me Too-style sexual harassment complaints. Their solution is a version of the “Pence” rule, named after Vice President Mike Pence, which involves never being alone with a woman one’s not married to to eliminate the risk of an allegation of impropriety. But these executives have learned exactly the wrong lesson.
The Pence rule is the opposite of a good defense in case of an allegation and, in fact, might leave the accused executive in an even more vulnerable position. To illustrate the point, we can consider the career of Supreme Court Justice Brett Kavanaugh, who might have had more trouble defending himself against Christine Blasey Ford’s sexual assault allegation had he followed the Pence rule.
Say an executive with a successful Wall Street firm sits in a courtroom in attendance of a pretrial conference. The judge has just ruled that the sexual harassment plaintiff will be allowed to introduce “climate” witnesses — that is, witnesses who will testify that the entire company permits or even promotes a climate permissive of sexual harassment of women. The jury will hear from three or four women outside of the executive’s inner circle who may not actually have had any direct contact with the executive.
The judge also rules that the defense will be allowed to put on rebuttal witnesses. The corporate lawyer turns to the executive with a whispered question: “Quick, I need the names of three or four women who can testify that you act like a gentleman when you’re alone with them in the workplace.”
The executive in this scenario who spent years avoiding women as potential enemies may now be left with none to call on as character witnesses. Kavanaugh relied heavily on female character witnesses in his Senate testimony. Consider the below portions:
One feature of my life that has remained true to the present day is that I have always had a lot of close female friends. I’m not talking about girlfriends; I’m talking about friends who are women. That started in high school. …
The committee has a letter from 65 women who knew me in high school. They said that I always treated them with dignity and respect. That letter came together in one night, 35 years after graduation, while a sexual assault allegation was pending against me in a very fraught (ph) and public situation where they knew — they knew they’d be vilified if they defended me. Think about that. They put theirselves (sic) on the line for me. Those are some awesome women, and I love all of them. …
One of those women friends from college, a self-described liberal and feminist, sent me a text last night that said, quote, ‘Deep breaths. You’re a good man, a good man, a good man.’ …
Throughout my life, I’ve devoted huge efforts to encouraging and promoting the careers of women. I will put my record up against anyone’s, male or female. I am proud of the letter from 84 women — 84 women — who worked with me at the Bush White House from 2001 to 2006, and described me as, quote, ‘a man of the highest integrity.’
Kavanaugh was surrounded by a ring of women who stood by him. It was necessary for his attackers to recruit accusers from the distant past outside his circle of friends. Kavanaugh-supporting women wept tears of frustration over the totally unsubstantiated accusations.
Because Ford was recruited from so far outside Kavanaugh’s social and professional proximity, her story had a number of problems. I identified 10 red flags one should look for in a sexual assault case here. Ford met many or all of these tests.
For example, she eagerly shared her story with The Washington Post, but delayed cooperation with Senate investigators (flag 1). She asked that Kavanaugh be forced to testify first before she committed to a final version of her account (flag 5). She made unusual demands to modify or control the process (flag 7). And Ford’s witnesses either didn’t corroborate or contradicted her account (flags 9 and 10).
These weaknesses demonstrated a lack of confidence in her account and were emphasized because she stood so far outside the established circle of friends and colleagues who had more than 30 years of first-hand experience with Kavanaugh. These women Kavanaugh chose to include in his life were assets, not liabilities.
As an employment attorney, I need these women in my client’s corner. Not only can women speak up for their colleagues when the chips are down, but they also seem to have an uncanny sense of the workplace dynamics that can really help in defense of a falsely accused executive.
When executives avoid hiring women because they’re women, they’re already on their way to losing a discrimination case. Furthermore, that practice lends credibility to the few women who do make it through when they complain of unfairness. My advice is always the same: Hire the best man or woman for the job. Executives who discriminate in the hopes of improving their chances in a discrimination case are sabotaging themselves.
