Barnaby Joyce’s relationship with his now pregnant former staffer has led to calls for the Australian parliament to consider laws banning sexual relationships between politicians and their employees. On 6 February, the US House of Representatives voted to implement such a ban following a slew of sexual harassment claims. The US bill explicitly bans sexual relationships between House members and “any employee of the House that works under [their] supervision,”
The House also approved the creation of an office to provide legal support to staffers reporting sexual harassment and a separate bill requiring politicians who settle sexual harassment claims to pay out of their own pockets instead of at taxpayer’s expense.
Measures to assist in prevention of sexual harassment and to provide additional support to complainants are welcome. But is a ban on consensual sex between two adults warranted?
The Australian Human Rights Commission defines sexual harassment as “as an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances”.
It is the unwelcome nature of sexual harassment which distinguishes it from consensual sex.
There are certainly instances where the law recognizes that, due to the differences in power between the parties, sex will be regarded as unlawful, or as misconduct, whether or not the two parties were both willing participants. Below a certain age the law deems a person to be incapable of giving consent and any sex between a teacher and a student is misconduct if not also unlawful.
Independent Australian MP Cathy McGowan is apparently considering promoting a law along the lines of the US House. She has been reported as stating that “There is a belief the Parliament is behind community expectations…good workplace practice includes clear expectations about behaviour”. Ms. McGowan referred to the resignation last year of two senior AFL officials for having conducted consensual affairs with younger female members of staff.
The AFL officials presumably breached a workplace policy that the AFL had in place. The AFL’s policy on ‘Responsibility and Respect’ can be found here. As one would expect, that policy indicates that the AFL has prohibitions on sexual harassment. It also contains matters about the way complaints should be handled. It does not contain any blanket ban on consensual sexual relations between staff that I can identify. I am unsure if the blanket ban can be found elsewhere in AFL policies or whether the officials resigned for some other reason.
Is it lawful for an employer to adopt a policy banning consensual sexual relations between staff members? It is well to bear in mind that anti-discrimination laws, as well as prohibiting sexual harassment, also prohibit discrimination on the basis of marital status.
Marital status refers to whether someone is, or is not, single, married, divorced, widowed, separated or with a domestic partner. The term ‘domestic partner’ covers all couples, irrespective of their sex and sexual orientation.
A policy that prohibits employment of a person who is married to another staff member would seemingly discriminate against that person because he or she is married and is not single. But a policy that limited the prohibition on sexual relations to staff who are not married would also breach the rule against discrimination on the basis of marital status as it would treat these staff less favorably than married staff.
The underlying question is why should we be interested in prohibiting sexual relationships between consenting adults just because they share a workplace?
Yes, there is a difference in power between an older man in an executive position and a younger women who might be sacked, or otherwise discriminated against, if she rejects an unwelcome sexual advance. But is this power differential alone a sufficient basis to render a consensual sexual relationship between the two people unlawful? Of course we should give support to victims of sexual harassment and adopt preventative strategies. But should we be placing a younger adult woman, who willingly consents to sex, in same position as a girl, who due to her young age, is not lawfully capable of giving consent?
We also need to take care that what we are not trying to use sexual harassment laws as a cover to prohibit adultery. Adultery might be a sin for those who believe in God. It might be contrary to the standards of a majority of the population (including even those who are in the one third of marriages where, in response to surveys, one of the partners admit to infidelity). We might be infuriated at the hypocrisy of politicians who use ‘happy family’ shots in their electoral material and who tell same sex couples they are unfit for marriage, and then claim that the reporting of their adulterous relationships breaches their privacy. Nevertheless it remains the fact that we are not a theocracy and adultery is not illegal.
Further, a workplace rule that only placed prohibitions on sexual relationships in the workplace where one or both parties are adulterers would not only be absurd, it would also breach marital status discrimination laws.
It remains the case that sexual relationships between staff, especially where one of the staff members is in an executive position, may well cause serious workplace problems. Even where the relationship is consensual, and therefore creates no problems for the participants, these relationships are often problematic in the workplace context because, at least where they are known about, or suspected, they can irritate other staff and lead to problems of actual or perceived favoritism.
But this is insufficient reason for the law, or employer policies, to intervene beyond perhaps employer policies that require disclosure of sexual relationships between line managers and their staff, a policy which is less likely to be adhered to when adultery is involved. Whatever the policy, problems of unfair favoritism, or the perception of favoritism, can arise in a whole series of situations and are very difficult to prevent, especially in smaller family businesses. These include, for example, where the workplace couple is married, or even where a family member or friend is favored over an ordinary employee and no sex is involved.
On the ALP side the most problematic of these types of relationship was probably that between former Treasurer Jim Cairns and his private secretary, Juni Morosi. Apparently colleagues found it difficult to directly access Cairns without first having to go through Morosi. Interestingly, similar types of complaint were made in relation to Tony Abbott and Peta Credlin, though, in the latter case, a sexual relationship, though suspected by some, was strongly denied by Credlin and never proven.
Indeed it is not particularly clear why the US House of Representatives has singled out sexual relationships for special prohibition. Is a romantic relationship between an executive and a less senior employee which is not consummated, perhaps for religious reasons, permitted simply because there is no sex? Where does sex begin? We can perhaps leave aside Bill Clinton’s dubious definitions but still ask the reasonable question: Is deep and passionate kissing to be prohibited? Is it ‘evidence’ of a prohibited relationship?
Some argue a complete prohibition is warranted because if two people in a working relationship want a sexual relationship, the appropriate thing to do is for one of them to leave that workplace. But where the relationship is between an executive and an employee in a subordinate position, who would be the one most likely to leave? Not the executive. So how does this approach advance the overall cause of equal opportunity?
Further, if there is a general prohibition against consensual sexual relationships between staff this will mean that other workers in the workplace will be able to legitimately raise complaints about the existence, or possible existence, of the prohibited relationships. This creates potential for a great deal of trauma and destruction, not only for the relationship between the staff members, but also for a host of other relationships. The creation of a general rule means that a consensual sexual relationship between staff members, even a highly discrete one, immediately become the business of everybody else in the workplace. It is hard to see how this is a desirable result.
The question also arises as to whether a total prohibition will be effective in preventing these relationships or just drive them further underground.
People who are in a working relationship should not be sacked or disciplined for engaging in consensual sex outside the workplace. If some change is required to sexual harassment laws and policies it should be far more practical and nuanced than treating people (mostly women) like children, by effectively rendering their consent to sexual relationships irrelevant.
A more nuanced response would be to allow the onus of proof to shift in certain circumstances in sexual harassment cases. It is not always easy to prove sexual harassment. A person alleging sexual harassment ultimately bears the onus of proof. But this rule of evidence could be modified.
I have in mind circumstances where an employee in a subordinate position alleges sexual harassment against somebody in a more powerful position in the workplace, perhaps a person who is proved to have had the power to terminate, promote or demote the subordinate employee, or who was otherwise directly supervising them. If in response, the person in the position of power admits the sexual relationship but claims that the advances and the relationship were at all times consensual, it might be appropriate for the onus of proof to then shift. This would mean that instead of the subordinate employee having to prove the advance was unwelcome or that the relationship was coercive, the onus would shift so that the executive would have to prove that the advances were welcome and that the relationship was at all times consensual.
Such a change would mean that those in positions of power in the workplace would need to be very confident that their sexual advances were welcome and that any resulting relationship was, and remained, consensual.
The law should also be codified to clarify that if a person with the power to employ, promote or demote is found to have sexually harassed an employ subject to his/her authority the employer should vicariously liable for the harassment irrespective of whether or not the manager’s acts breached the employer’s policy.
These approaches would not vitiate the capacity of grown adults to consent to sexual advances from those who hold positions of power over them in the workplace and it would not result in other employees making complaints, well founded or not, about prohibited sexual relationships between their workmates. But it would provide enhanced protection against abuse of power in all workplaces, not just the rarefied environment associated with high political office.
Of course none of this resolves the broader issue of why we have such disparities of power in the workplace in the first place. There will always be some inequality. But there are more equitable and democratic ways of organising production that have proved economically successful.