Think the Pence rule is a good idea? Think again

From NBC’s Matt Lauer to Def Jam’s Russell Simmons to US Senate candidate Roy Moore, accusations of harassment and assault at the hands of high-profile leaders are seeing the long-overdue light of day. We are witnessing a cultural tipping point for women. In response, a recent New York Times article explained that many men at companies are starting to wonder whether they themselves were involved in gender misconduct or somehow “ignored the signs.”

Some men are now reporting that they plan to avoid women at work or follow the “Pence rule,” named for Vice President Mike Pence, who has said that he does not eat alone with women who are not his wife or attend an event without her if alcohol will be served. Going in that direction is a big mistake. Instead, as this #MeToo moment reaches across industries and demonstrates the pervasiveness of workplace harassment, companies need to set clear values, and then live by them.

In this uncertain and constantly changing environment, isolating and excluding women in the workplace will take us in the wrong direction. Companies shouldn’t fear women’s voices in 2017. They should be enabling opportunities for women to come forward through anonymous hotlines, safe reporting mechanisms and anti-retaliation measures. As recent headlines prove, when women don’t feel heard at work, they will make sure they are heard elsewhere. A recent Wall Street Journal/NBC News poll found that an astonishing 48% of women in the United States claim to have been sexually harassed.

Companies now face a moment of decision: take a step backwards or take a step forward. The solution to harassment in the workplace is not a return to the Mad Men era, excluding women from business meetings, cocktails with clients and networking opportunities. That would be both fundamentally inconsistent with the law and bad for business.

Not only is the “Pence rule” incompatible with the laws requiring that women be afforded equal opportunity in the workplace, but it is also a missed opportunity to embrace the moment and to foster and promote women’s voices in the workplace. When companies are appropriately responsive to sexual harassment, everyone benefits. When women don’t feel safe to speak up (whether about sharing a new idea or reporting misconduct), organizations are deprived of valuable ideas.

A 2013 op-ed by Sheryl Sandberg and Adam Grant hammers home the point that research shows having women in power is good for business: “Start-ups led by women are more likely to succeed; innovative firms with more women in top management are more profitable; and companies with more gender diversity have more revenue, customers, market share and profits.” Morgan Stanley, for example, recently found that companies that support women had a real impact on return and investment and return on equity; they were doing better financially and had lower volatility.

Investors are also taking note of how companies choose to respond to this critical moment. A recent article in Barron’s magazine noted that “(c)ompanies that tolerate or cover up sexual harassment, perpetuate a culture that fosters it, or fail to provide proper avenues for employees to report concerns and offenses, could pay in multiple ways, from difficulties in attracting, retaining, and motivating talented workers to customer defections, ruined business deals, and lost revenue and profit.” Research has shown that every case of sexual harassment costs on average about $22,500 in productivity alone; and this number does not factor in legal situations and settlements.

So how should a company respond? First, it can commit to addressing gender misconduct in the workplace head-on. One survey found that 77% of boards hadn’t talked about sexual harassment. Now is the time to change this: whether companies like it or not, honest conversations about gender misconduct are finally happening and that should continue, in the lunch room, the conference room and the board room.

As Tina Tchen, former chief of staff to First Lady Michelle Obama and executive director of the White House Council on Women and Girls, recently explained in Forbes, “for too long, we have viewed issues of gender and race discrimination, sexual harassment, and diversity and inclusion as solely human resource topics, affecting only personnel decision-making and employment law exposure.”

It is important for lawyers like me to help facilitate women speaking up and speaking out on every front. It is why I am proud to be representing the woman being sued by famed Hollywood producer Brett Ratner for defamation for speaking out. It is also why we must and will continue to work with companies to bring their organizations into compliance with 21st century values. As individuals, as companies and as a culture, we should not be looking for ways to sidestep this movement, but should instead be embracing it and pushing it forward with the institutional support it deserves.

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