NIH may be “constrained” in investigating sexual misconduct at NIH-funded institutions once alleged perpetrators are no longer affiliated with these institutions, NIH officials implied in their response to a congressional inquiry on sexual misconduct (The Cancer Letter, Sept. 24, 2021).
The congressional inquiry is based on The Cancer Letter’s investigative story of the case of Axel Grothey, an oncologist who was able to retain an influential advisory position at NCI even after being disciplined by three states for inappropriate sexual behavior that involved a mentee (The Cancer Letter, May 28, 2021).
NIH failed to conduct even the most basic follow-up that it promises to internal employees and employees at awardee institutions.Shea Holman
In the Grothey case, two women reported Grothey’s misconduct to NIH and NCI in April and May 2019, with no results. The NIH Office of Extramural Research sent an automated response to one of the women and never followed up.
Does NIH’s authority to ask questions end the moment an alleged perpetrator leaves an NIH-funded institution? Should NIH leaders explain why they allowed Grothey to remain on the NCI steering committee for two years after complaints were filed?
To understand the limits of NIH’s authority and best practices for investigating allegations of sexual misconduct, The Cancer Letter asked two experts on professional misconduct to review NIH’s response to the House Committee on Energy & Commerce inquiry:
- Pringl Miller, founder and executive director of Physician Just Equity, a nonprofit that provides peer support for physicians who experience harassment, discrimination, and retaliation; and
- Shea Holman, director of law and policy at the Purple Campaign, a nonprofit focused on ending sexual harassment in the workplace.
Miller and Holman spoke with Matthew Ong, associate editor of The Cancer Letter.
Matthew Ong: What are your initial reactions to—and takeaways from—NIH’s response to the congressional letter?
Pringl Miller, Physician Just Equity: I’m not convinced safe reporting exists, even though there’s a process. I don’t trust institutions to report, due to inherent conflicts of interest.
The NIH needs to establish a direct and safe line of communication with all key personnel regularly, so that victims/survivors can report with the confidence that the NIH will actually do something about it—bringing in the institution is fraught with further harassing, discriminatory, and retaliatory repercussions.
Perpetrators should be exposed publicly for their actions. To date, the consequences for gender discrimination and sexual harassment have not significantly deterred people from acting out those behaviors.
The NIH, as a federal agency, must be an exemplar by identifying perpetrators and eliminating sexual harassment. The NIH should follow the law and their Anti-Sexual Harassment statement and the 2018 NASEM consensus study report on sexual harassment recommendations to a “t,” so that other institutions follow their example.
Shea Holman, The Purple Campaign: Firstly, in NIH’s response letter, the principal deputy director discussed that the agency “expects that organizations receiving NIH funds have in place similar policies and related procedures for their employees, contractors, trainees, and fellows who engage in agency-funded activities.”
It also included clarifying expectations of organizations to ensure a safe workplace and inform the agency of investigator or key personnel changes.
This requirement that NIH-funded organizations have rigorous policies and procedures regarding sexual harassment put in place is a positive step toward addressing the issue.
We know that transparency helps prevent workplace harassment by creating shared norms and expectations, building trust, and demonstrating accountability. In particular, establishing clear written policies and communicating them effectively to employees and third-parties can deter problematic behavior from occurring in the first place.
We’ve seen that companies in the private sector, for example, are increasingly sharing their written policies externally with third-parties, including members of the public, in order to create shared norms around acceptable and unacceptable behaviors in the workplace.
Many organizations are also sharing information about their response to policy violations, both internally to employees and externally to the public.
While NIH has stated in the past that it expects organizations receiving NIH funds to have similarly rigorous policies and related procedures in place for employees, NIH needs to make it clear that any organization receiving NIH funding should take allegations of discrimination seriously, will investigate allegations in a timely manner, and will hold accountable any perpetrator of acts of discrimination.
Secondly, the NIH response letter noted that NIH provides clear channels of communication, whereby anyone can report concerns. NIH established a dedicated mailbox “firstname.lastname@example.org” to receive notifications of possible violations of NIH policy or rules.
Given the significant barriers that exist to reporting internally, establishing multiple channels for reporting can break down those barriers and build trust within the workforce. Reporting is a central component of addressing workplace harassment and, as a result, many organizations now provide employees with options to report anonymously, online, via phone, or to one of several individuals within the organization.
The NIH is taking an important step—and one we’d like to see other federal workplaces mimic—by providing an external channel for people to report misconduct in the sciences. This gives people an option of reporting to an entity other than their employer. They can instead go around and report to NIH as the grantor.
While the NIH’s establishment of an email account is a necessary first step in providing varied channels for reporting, this addition can only be successful if NIH also follows-up on all reports of harassment received through those channels.
NIH Director Francis Collins has testified in the Senate that, without statutory conveyance of authority, NIH is unable to require reporting of sexual misconduct at grantee institutions. Does this mean that NIH cannot make an inquiry or conduct a “cursory review of the allegations made,” even if grantee institutions aren’t legally required to respond or provide information?
Miller, PJE: It’s not enough for the NIH to require institutions receiving NIH funding to report a change in key personnel removed from their position for harassment. Institutions by and large will not do that, because there is a conflict of interest, and survivors do not report.
I’m impressed with the accounting of persons temporarily removed until full investigations were conducted and or removed when found guilty of sexual harassment or other illegal/unethical behavior.
Holman, TPC: NIH has made it clear that individuals who have concerns that an NIH-funded project has been affected by sexual harassment may notify NIH through a web form, by phone, or by email.
The organization has also made it clear that shortly after filing a report, the person who notified NIH of the concern will receive a response from the NIH Office of Extramural Research (OER) letting them know that OER is reaching out to senior leadership at the awardee institution, and that NIH will follow up with the relevant institution to request information such as the timeline to investigate and restrictions on persons designated on an award.
NIH policies also state that OER will expect awardee institutions to provide a written response within 30 days of being notified.
In this case, however, two women reported Grothey’s misdeeds to NIH and NCI, with no results. The NIH OER sent an automated response to one of the women and never followed up.
Although NIH has stated it is unable to legally require reporting of sexual misconduct by outside entities, NIH failed to conduct even the most basic follow-up that it promises to internal employees and employees at awardee institutions.
The organization did not follow up with these women, did not reach out to senior leadership to ask about a timeline to investigate or restrictions placed on Grothey, or inquire whether corrective action was being taken.
We know that one reason many individuals fail to report harassment is because they assume their organization will not take any corrective action. Over half (53%) of employees say that their company has “talked the talk since #Metoo” but they do not see it “walking the walk.”
Not only did NIH fail to reach out to the awardee institution, but it failed to maintain any transparency with the reporting parties on whether an investigation would occur or what corrective action would take place.
When NIH received complaints about Axel Grothey in April and May 2019, he had already resigned from his position at Mayo Clinic—which is noted in NIH’s response to the congressional inquiry. Does Grothey’s departure from Mayo Clinic, an NIH-funded institution, absolve NIH from all responsibility to initiate an inquiry or conduct a cursory review at Mayo Clinic? (I.e. if NIH is notified that an alleged perpetrator has left, does it mean NIH can’t/doesn’t have to take further measures?) What would’ve been the appropriate course of action?
Miller, PJE: In the interest of adhering to their no-tolerance policy and being a stakeholder in the scientific and academic community I would think that ethically they would be obligated to pursue the proper course of action.
They may not have legal standing if the perpetrator is not receiving NIH funds and/or working at an NIH-funded site.
I think the fact that Dr. Grothey had, during the events, but not at the time of recognition, is a poor excuse for their inaction.
Holman, TPC: We advocate for fair and thorough investigations and steps demonstrating accountability, neither of which have fully occurred here.
Half of employees say that consequences for workplace harassment are still inadequate and three out of 10 employees think that high performers are never or rarely held accountable when they harass someone.
While the NIH Office of the Director worked with and strongly supported Dr. Sharpless in his removal of Dr. Grothey from an NCI steering committee, this is only one element of accountability.
Grothey maintained his position at NCI as a co-chair of the National Clinical Trials Network GI Steering Committee and NIH has failed to explain why Grothey wasn’t removed from the committee at the time the complaints were made.
As the EEOC has stated:“Because organizational culture is manifested by what behaviors are formally and informally rewarded, it all comes down to accountability—and accountability must be demonstrated.”
The two women who contacted NIH in early 2019 did so because Grothey had maintained his position at NCI as a co-chair of the National Clinical Trials Network GI Steering Committee—a fact that was presented in their 2019 complaints to NIH. In response to the congressional letter, NIH does not explain why Grothey wasn’t removed from the committee at the time the complaints were made, and doesn’t describe any review or investigation in 2019-2020 (before The Cancer Letter contacted NCI in May 2021). Should NIH have taken action sooner on this matter, which is arguably well within their authority to respond to? And should NIH leadership provide an explanation for why no action was taken at the time?
Miller, PJE: Yes, they should have taken action when the complaints were brought to their attention.
Yes, the NIH should be held accountable for their inaction especially in light of their 2/28/19 update on Efforts to Address Sexual Harassment in Science: “Demonstrate accountability and transparency”—how did they do that in Dr. Grothey’s case?
“Provide clear channels of communication”—they didn’t do that, because the complaints went unaddressed as far as I can tell until TCL contacted NCI in May 2021; correct? Did the NIH “incorporate the survivors’ perspectives into future actions”?
Holman, TPC: Women and men both say organizations need to do more to create a safe and respectful work environment. Forty percent say disrespectful behavior toward women is often quickly addressed and just 32% think their organization swiftly acts on claims of sexual harassment.
It is important for organizations like NIH to investigate sexual harassment complaints promptly. At the Purple Campaign, we advocate for timely, fair, thorough, and impartial investigation procedures to respond effectively when individuals report instances of workplace sexual harassment.
It is also important for organizations to take appropriate interim steps to prevent harassment and retaliation during the investigation process. NIH has policies which state the organization will follow up with the relevant applicant/grantee institution to request information such as timeline to investigate and restrictions on persons designated on an award.
Yet, NIH allowed Grothey to maintain his position at NCI as a co-chair of the National Clinical Trials Network GI Steering Committee and allowed him to retire with his reputation intact.
As a result, NIH leadership should explain why it failed to follow its own policies in this case.