What’s Your Damage? Assessing the Harms of Sexual Harassment From the Perspective of the Victim and the Accused

Abstract This article begins with a simple question: why are the damages awarded to victims of sexual harassment so much lower than damages awarded for those defamed by false allegations of sexual harassment? This article undertakes a comparative analysis of the underlying rationales for awarding damages in the doctrines of sexual harassment and defamation, tracking the historical reasons why sexual harassment damages have traditionally been so low compared to other doctrines. Then, it directly analyses two cases which awarded some of the highest damages in their respective doctrines: Rush v Nationwide News Pty Ltd and Hughes v Hill. This analysis reveals how the ongoing effect that traditional factors inhibiting sexual harassment damages, such as gender stereotyping and the requirement to medicalise damages, results in ongoing discrepancies in the damages awarded between both doctrines. This article suggests a simple solution: applying similar rationales for assessing damages in defamation to sexual harassment decisions.