What’s Your Damage? Assessing the Harms of Sexual Harassment From the Perspective of the Victim and the Accused
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/0067205X241306793 |
| Author | Alice Taylor,Joshua Taylor |
| Date | 01 December 2024 |
| Subject Matter | Articles |
Article
Federal Law Review
2024, Vol. 52(4) 435–455
© The Author(s) 2024
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DOI: 10.1177/0067205X241306793
journals.sagepub.com/home/flr
What’s Your Damage? Assessing the
Harms of Sexual Harassment From
the Perspective of the Victim and the
Accused
Alice Taylor*and Joshua Taylor**
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.
Accepted 27 November 2024
I Introduction
In July 2020, the Full Court of the Federal Court of Australia affirmed two determinations on
damages. In one, Nationwide News Pty Ltd v Rush (‘Rush’),
1
the Full Court affirmed the findings of
the trial judge that the plaintiff was entitled to AUD850,000 in general damages for defamation in
circumstances where the defendant, a publishing company, had published defamatory stories about
the plaintiff accusing him of sexual harassment of a co-worker.
2
In the other, Hughes v Hill (‘Hill’),
3
the Full Court affirmed that the victim of sexual harassment was entitled to AUD120,000 in general
* LLB (Hons)/BPolGov (Griffith) PhD (ANU), Assistant Professor, Faculty of Law, Bond University, Australia.
Email: altaylor@bond.edu.au
** LLB/BA (Griffith) LLM (QUT), Independent Researcher
1. (2020) 380 ALR 432 (‘Rush’).
2. Ibid 436.
3. (2020) 277 FCR 511(‘Hill’).
damages and AUD50,000 in aggravated damages for exposure to years of sexual harassment in her
former place of employment.
4
While in both cases the plaintiffs were ultimately successful, the cases —determined so closely
together —can present as the different sides of the same coin. Both cases speak to the pain and
damage that sexual harassment claims can cause to both the victim, in the case of Hill, and to the
accused, in the case of Rush. But it does seem striking that the pain, damage and loss caused by a
defamatory accusation of sexual harassment is worth more than four times as much as the ex-
perience of sexual harassment itself. Understanding and interrogating this discrepancy is partic-
ularly important in Australia as, since the rise of the #MeToo Movement in 2017, commentators
have questioned whether Australia’s strong defamation laws operate as a silencing mechanism as
victims of sexual harassment may be fearful of the consequences of a public discussion of their
harassment.
5
Sexual harassment is a pressing social issue, with one in three workers in Australia indicating that
they have been sexually harassed at work.
6
While sexual harassment is now understood to be a
widespread problem, the approach to remedies in discrimination and sexual harassment claims has a
long history of criticism.
7
In particular, the remedial approach understands discrimination and
sexual harassment as a singular, individual event with one victim and one perpetrator.
8
As such, the
remedies for discrimination and sexual harassment are in the form of individual damages. If the
purpose of discrimination and sexual harassment law is understood as a broader attempt to fun-
damentally change society to make it more equal, then an individualistic approach is manifest ly
inadequate. Remedies must include broader systemic remedial approaches.
9
Some recent steps have
been taken in this respect, including placing a positive duty on employers to take steps to prevent
such conduct from occurring in the first place.
10
Nevertheless, even within a broader systemic
framework, individuals may still want to pursue individual compensation for their loss and damage.
As such, it will remain important to understand the approach adopted in the courts to the damages in
discrimination and sexual harassment claims and understand the nature of the harm that dis-
crimination and sexual harassment causes to the individual.
4. Ibid 5245.
5. Karen O’Connell, ‘Geoffrey Rush’s Victory in His Defamation Case Could Have a Chilling Effect on the #MeToo
Movement’,The Conversation (online, 11 April 2019) <https://theconversation.com/geoffrey-rushs-victory-in-his-
defamation-case-could-have-a-chilling-effect-on-the-metoo-movement-115127>. See also Margaret Thornton, Kieran
Pender and Madeleine Castles, Damages and Costs in Sexual Harassment Litigation: A Doctrinal, Qualitative and
Quantitative Study (Report conducted for the Respect@Work Secretariat, Commonwealth Attorney-General’s De-
partment, 24 October 2022) 93.
6. Australian Human Rights Commission, Time for respect: Fifth national survey on sexual harassment in Australian
Workplaces (Report, 2022) 12 (‘AHRC 2022 Sexual Harassment Survey’).
7. Margaret Thornton, ‘Sexual Harassment Losing Sight of Sex Discrimination’(2002) 26(2) Melbourne University Law
Review 422; Paula McDonald, Sara Charlesworth and Somali Cerise, ‘Below the “Tip of the Iceberg”: Extra-Legal
Responses to Workplace Sexual Harassment’(2011) 34(4) Women’sStudies International Forum 278 (‘Below the “Tip
of the Iceberg”’); Belinda Smith, Melanie Schleiger and Liam Elphick, ‘Preventing Sexual Harassment in Work:
Exploring the Promise of Work Health and Safety Laws’(2019) 32(2) Australian Journal of Labour Law 219; Elizabeth
Shi and Freeman Zhong, ‘Addressing Sexual Harassment Law’s Inadequacies in Altering Behaviour and Preventing
Harm: A Structural Approach’(2020) 43(1) University of New South Wales Law Journal 155 (‘Addressing Sexual
Harassment Law’s Inadequacies in Altering Behaviour and Preventing Harm’).
8. Smith, Schleiger and Elphick (n 7) 220–1.
9. Shi and Zhong (n 7) 156.
10. Sex Discrimination Act 1984 (Cth) pt IIA; Anti-Discrimination and Human Rights Legislation Amendment (Respect at
Work) Act 2022 (Cth) pt IIA.
436 Federal Law Review 52(4)
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