Essay by Linda Hirshman.The views expressed are the opinions of the author.
Recently some men — on the right and on the left — have volunteered a solution to the sexual harassment problem: Stop meeting privately with women. On the right, Vice President Pence confessed to not meeting with any women where food or drink is served unless his wife, whom he calls “Mama,” is along to chaperon. (Although still a minority, more Republicans than Democrats think meeting alone with women is inappropriate; believers like evangelicals are twice as likely to disapprove as, say, atheists.) On the left, Politico Labor editor Timothy Noah tweeted his small solution: “Make holding closed-door meetings with ANYONE a fireable offense.” And, speaking anonymously, a venture capitalist told the New York Times recently that “people … are avoiding solo meetings with female entrepreneurs, potential recruits and those who ask for an informational or networking meeting.”
In addition to the whiff of extortion (complain about men? Okay, sister, you get no meetings), there is so much wrong with these “solutions.” First, they would hurt women. Pence’s policy would shut every aspiring female staffer, inquiring journalist or prospective colleague out of opportunities for information, access, dealmaking, even just plain, candid advice. Are venture capitalists, as recent reports have suggested, so uninterested in investing in women’s ventures that it would be no loss? And Noah’s superficially neutral proposal triggered a tweetstorm of hilarious takedowns.
As long as we’re shutting down spaces that might contain harassment, the New Yorker’s Emily Nussbaum tweeted:
What about two-stall bathrooms, Uber pool rides, the coffee room and closed conference rooms?
At any rate, we do not segregate the victim: Too often, men beat their domestic partners; could the government have a policy forbidding people from living together in private homes? Car theft is a very common kind of theft. Should we forbid leaving the garage?
But the bigger problem is that these “solutions,” which discriminate and are harmful, are illegal.
Government institutions — federal, state and city — that offer meetings only to men are in clear violation of the Fifth or 14th Amendments to the Constitution. As Justice Ruth Bader Ginsburg wrote in her landmark opinion in the VMI case, when government singles out women for disparate treatment, the “reviewing court must determine whether the proffered justification is “ ‘exceedingly persuasive’ … The State must show at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’”
Pence would argue the “important objectives” are protecting men from their own predatory impulses and protecting women from predatory men. Since there is no evidence that eating is an especially dangerous occasion for harassment, the Pence rule is way too narrow to be “substantially related” to its protective objective. Segregated offices (Bill Clinton), segregated restaurants (Weinstein), segregated copy rooms (Wieseltier), even segregated awards ceremonies (Stephen Collins) mean only a complete regime of sex segregation would be broad enough. But a sufficiently broad policy is ridiculously overbroad: A handful of incidents, the Supreme Court has ruled, cannot support an overall policy of sex discrimination.
The absurdity highlights the real reason for these ideas: Protecting pure men from false accusations. Here again, the established 14th Amendment rule that a handful of random examples cannot justify treating all women differently applies. Good statistical evidence in this hotly contested area indicates that 5.9 percent of all sexual assault reports are false. In no constitutional universe could a rule of sex segregation to avoid false charges survive Ginsburg’s tests.
In private business, as well as government, the Civil Rights Act of 1964 forbids employment discrimination on the basis of sex. Where the employer refuses meetings or any other interaction with females while allowing access to men, the discrimination is, on its face, disparate treatment, in violation of Title VII. The defenses of protection and false accusation would never meet the tightfisted language of “bona fide occupational qualification” the statute imposes. The standard example of such a qualification is a male model for a men’s clothing designer.
But, the entrepreneur would say, female start-up founders applying for investment are not employees, so none of that applies to me. But would-be male-only funders had better take care. Many places with a great deal of funded start-ups — New York City, California, and even the District of Columbia — have local laws prohibiting sex discrimination in public accommodations. While conventional wisdom holds that such laws are meant to apply to lunch counters and the like, the statutory language is much broader. “Public accommodation” is actually a kind of equal protection clause for the market economy. California’s Unruh Act, for example, enables “All persons” “regardless of sex” to the “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Although there are no reported decisions on venture capital, a group of men’s rights activists have been suing repeatedly to stop women from meeting with other women at tech conferences, as a violation of the sex discrimination provisions of the Unruh Act. However unattractive, the cases, generally settled, attest to the breadth of the law. Women denied pitch requests simply because they are female are surely denied full privileges and services from the venture capital businesses.
Conscious of the harrowing legal consequences of cutting off only women, Noah would open the office door on meetings with all sexes. In many settings, this may not be enough to be legal. The Civil Rights Act prohibits superficially neutral practices with a disparate impact on women. Because of the deep sexual divide of the workplace, banning all closed-door meetings would have a disproportionate effect on female workers. Just think of the many two-person offices: Who would bear the burden if that rule applied to medical service providers employing dentists and hygienists, lawyers and assistants? Fortune 500 boards of directors are 90 percent male. Only 5 percent of CEOs are female, and women constitute just 15 percent of top-five executive jobs.Board meetings and executive functions among the top-five executives give these men ample chance to meet informally. The guys still go golfing, even if not to strip clubs. Confining “everyone” to formal meetings disproportionately affects women, marooned in or moving up in middle management. Proving disparate impact is harder, but once proven, the employer has to show why the policy is necessary. That puts them right back into the indefensible position of saying they can’t control themselves or they’re afraid of their lying female workers.
Composer Cole Porter saw the answer 50 years ago. The whole ridiculous set of barring and blaming proposals could be easily disposed of with a song from “Kiss Me Kate.” It’s called, “Why, Can’t You BEHAVE?”
Linda Hirshman is the author, most recently, of “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.” She is working on a history of abolitionism.