Shikha Jain, Shea Holman examine NIH’s new requirements for institutions to report misconduct

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Shikha Jain, MD, FACP

CEO and founder, Women in Medicine; Assistant professor of medicine, Division of Hematology and Oncology, Director of communication strategies in medicine, University of Illinois, Chicago; Associate director of oncology communication and digital innovation, University of Illinois Cancer Center

Shea Holman, JD

Director of law & policy, The Purple Campaign

This article is part of The Cancer Letter's Ending Sexual Misconduct in Academic Medicine series.

Effective July 9, NIH-funded institutions that do not report relevant cases of misconduct—including sexual harassment, bullying, and retaliation—within one month would be considered to be in violation of NIH regulations and of federal law.

Section 239 of the Consolidated Appropriations Act for fiscal year 2022 gives NIH a new authority to require all institutions that “receive funds through a grant or cooperative agreement during fiscal year 2022 and in future years” to notify NIH when principal investigators or key personnel are removed from their position or are disciplined due to misconduct.

To understand if these new measures will work as intended or whether they are sufficient, The Cancer Letter asked two experts on professional misconduct to critique NIH’s reporting requirements:

  • Shikha Jain, CEO and founder of Women in Medicine, assistant professor of medicine, Division of Hematology and Oncology, director of communication strategies in medicine at the University of Illinois Chicago, and associate director of oncology communication & digital innovation at the University of Illinois Cancer Center; and 
  • Shea Holman, director of law and policy at the Purple Campaign, a nonprofit focused on ending sexual harassment in the workplace.

Jain and Holman spoke with Matthew Ong, associate editor of The Cancer Letter.

Matthew Ong: What do you think of NCI and NIH’s new authorities on reporting sexual harassment and other kinds of retaliation and bullying behaviors? Are these requirements effective and sufficient? Are they adequate?

Shikha Jain: I think it’s a good step forward. I think the challenge, really, is multifold—the problem is, many times, even with these types of statements being put out, many women do not feel comfortable telling others when this type of thing happens, or reporting when these things happen, because of fear of repercussions.

And so, I know many women who have been targeted, or who have had negative things happen to them, where they’ve been harassed, or bullied, or had been discriminated against. And they haven’t been willing to report those people, because of fear of negative repercussions on their own career or their career trajectory.

That is a big concern, that we need to make sure that these women feel that they can report, and there won’t be negative repercussions in their careers. Many women are often targeted after they bring these things up.

The other challenge, I think, is, while it’s fantastic that PIs who are removed, or who are reprimanded for this type of behavior, will be reported, many times, people are reported, and there are no actions taken. 

So, we talk about this concept of pass the trash—it’s similar to what happened with the Dr. Axel Grothey situation, last year—where physicians, or researchers, or scientists, are reported, and the data is there that they have been harassing or bullying.

Instead of them being reprimanded, they instead are asked to leave the institution, and then they actually fail up, and they end up in a larger position at another institution.

That is a real challenge, in the fact that this requirement by the NIH is saying that, if a person has been relieved, due to some type of report, it’s going to be hard to hold accountable those people who are moved to another institution, without ever being reprimanded or listed as an individual who has had any negative allegations against them.

It’s the first step, but we really need to be fighting for culture change where, one, the people who do the reporting aren’t penalized, and, two, the people who are accused, if it is proven that they are indeed harassers or bulliers, that they don’t just get passed to another institution, that there are real-world consequences for the negative actions in which they have participated.

Shea Holman: Francis Collins, who previously served as NIH director, testified in the Senate that, without any statutory conveyance of authority, NIH is unable to require reporting of sexual misconduct at grantee institutions. 

Thus, prior to Section 239 of the recently passed Consolidated Appropriations Act for 2022, NIH was unable to legally require grantee institutions to respond or provide information on sexual harassment. 

However, NIH did make it clear at that time that individuals who had concerns that an NIH-funded project was affected by sexual harassment should notify NIH through a web form, by phone, or by email. 

This lack of clear authority to require funded institutions to report to NIH greatly limited NIH’s awareness of when harassment was affecting NIH-supported activities, and therefore NIH’s ability to take necessary action to address these issues and demonstrate accountability. 

Importantly, the disclosure requirement would make it more difficult for researchers accused of harassment and sexual misconduct to move from institution to institution instead of facing discipline for sexual harassment or misconduct. 

Speaking of the Axel Grothey case, as an example, would these new rules have enabled NIH to formulate a timely and appropriate response, if victims find themselves in similar scenarios, going forward?

SJ: I think one of the biggest challenges with that case is, in hindsight, there were a lot of complaints that were happening, over the years, that were just overlooked. 

And so, he continued to rise, and he continued to succeed and gain leadership positions, when there were repeated allegations that then ended up proven correct, that he was bullying and harassing individuals.

I think his example is a prime example of how one could, potentially, get around this type of reporting, when it’s not officially reported, for years, that he has been engaging in bad behavior.

SH: Axel Grothey was able to avoid any necessary corrective action by simply resigning and then moving to another job, while maintaining his position on an NCI steering committee and keeping his reputation intact. This legislation directly targets that type of scenario. 

While this new legislation is an important step toward achieving greater transparency and accountability, NIH needs to pair it with timely and proportionate corrective action in instances of substantiated misconduct. 

Concerningly, in the Axel Grothey case, two women came forward to report 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, at the time, NIH was 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.

Many employees fail to report workplace misconduct because of the lack of redress by employers when incidents are filed. 

They feel that leadership will do nothing about the misconduct and that the workplace culture does not support them. They may have seen or heard of other incidents of misconduct that were reported with no action taken to correct the problem. 

In Grothey’s case, 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 be conducted by their institution or what corrective action would take place.

Do you expect the provision to serve as a deterrent for misconduct? And do you think it would help encourage vulnerable victims to be more likely to report incidents?

In a survey we conducted two years ago, we found most women just do not report because they do not have confidence in their institutions and do not expect any kind of response to be adequate.

SJ: I hope it would be a first step, but I don’t think this, in itself, will make a major difference because the culture is still such that women are penalized.

So, I think, until we start seeing real action, until women start experiencing the support that we need to give them, when they undergo these types of situations and scenarios, until we put our money where our mouth is, so to speak, until women start to see that they can report, or their colleagues have reported—and they haven’t been penalized, it hasn’t negatively impacted their careers, the whisper network doesn’t get activated and, all of a sudden, you find yourself without a leadership opportunity—I think, once we start seeing that there is a culture change, that will be a bigger deterrent to people behaving in this manner and a better way to, or a different way to, promote women actually reporting these types of behaviors.

I’m hopeful that this is a step in the right direction, but I do think we need to take more global steps to really change the culture, overall.

SH: Taking the step of requiring reporting shows that NIH doesn’t tolerate sexual harassment or any form of harassment at grantee institutions. 

In addition, tying funding to safe, inclusive workplace conduct may act as an incentive for grantee-institutions and PI’s to be more conscious of and concerned about workplace misconduct. 

On the other hand, the NIH policy does not address what happens if an institution never follows up on the report and/or fails to complete an investigation.

Simply requiring NIH-funded institutions to report if they find that anyone funded by a grant has committed sexual harassment is not enough. 

Addressing misconduct requires a holistic approach—one that includes robust reporting, investigation, and corrective action procedures. 

Without these policies and procedures in place, there will continue to be a lack of reporting, because individuals will not feel their complaints will be investigated, addressed, or taken seriously.

What additional authorities do you think NIH should have to move the needle in that direction? And what else should NIH do?

SJ: I think NIH needs to put some of the onus on systems and on leadership. And I think there needs to be real steps that need to be taken if someone brings up an allegation.

I think there needs to be a strategy: How do we support a woman, or man, anyone, who comes forward with an allegation? What is standard? What do we need to be doing? So, if someone reports an issue, what is the next step?

How do we make sure that there are standardized ways that we can support these women—so that, no matter what, the woman who comes with an allegation knows that, at least, certain steps will be followed, and certain procedures will be followed to investigate—as opposed to just sweeping it under the rug?

SH: Prior to this legislation, NIH lacked clear authority to require funded institutions to report to NIH whether personnel changes to an NIH grant are related to harassment, only that they should report it.

This limited NIH’s awareness of when harassment was affecting NIH-supported activities. 

This is an important first step. However, to ensure this is successful and achieves the intended goal of ending harassment in biomedical research, NIH needs to outline the reporting mechanism in detail. 

For example, the National Science Foundation provides NSF-funded entities and individuals with two web forms to submit a notification of a PI’s or co-PI’s placement on administrative leave or a finding of harassment to the National Science Foundation’s Office of Equity and Civil Rights. 

The website specifies that only the identification of the PI or co-PI is required. Personally identifiable information regarding any complainants or other individuals involved in the matter must not be included in the notification. 

NIH needs to create similar channels for reporting so that funded institutions and individuals have clarity on how and where to report. Without this information, incidents of misconduct will continue to be underreported. 

Secondly, it is promising to see that the NIH administered an inaugural Workplace Climate and Harassment survey in 2019 and developed resources such as a findings report, infographics, and survey methodology institutions can adopt as they deem appropriate to their needs. 

It is crucial for NIH to continue to conduct workplace climate surveys within NIH and NIH-funded institutions to identify and examine the gaps and needs in its existing policies and practices. 

To ensure transparency, climate survey findings from grantee organizations should be reported to NIH on a biannual basis to keep them accountable.

Also important in any climate survey is the ability to measure not only what the organization does in order to meet the current standards, but the impact that it is having on the lived experiences of those on the ground. 

A uniform climate survey across NIH-funded organizations as a whole would provide additional valuable insight into not only the prevalence of certain types of workplace conduct issues, but also the impact and effectiveness of current policies and procedures. 

The best prevention-oriented climate surveys are anonymous, confidential, and explore workplace culture and environment in order to identify employee needs, gaps in response, and workplace expectations. 

Findings should be shared internally with employees. Updating employees helps keep the survey top of mind and demonstrates that their feedback has been heard and is being taken seriously. 

Utilizing a climate survey, employee interviews, and focus groups made up of current and former employees, NIH could more effectively track the impact its policies and practices are having on incidents of workplace misconduct and accountability.

Besides its benefits for the NIH by creating greater transparency and information-sharing on best practices, conducting a workplace climate survey also gives employees the chance to channel their opinions through an official tool. 

The simple fact of allowing workers to express their opinions and know they will be heard and taken seriously by their workplace is an improvement in the work environment itself. 

Employees pay close attention to how their workplace handles allegations of sexual harassment and discrimination. 

Climate surveys signal to employees that their employer is taking the issue seriously and is willing to listen to, and be responsive about employee needs.

What do you expect from NIH, in terms of, number one, consequences for perpetrators and, number two, transparency in communicating cases to the public?

SJ: That’s such a hard question, because it likely will need to be decided on a case-by-case basis. 

One, transparency is absolutely key. When things like this happen, it’s not something that people should hear about through rumors.

When something like this happens, it needs to be made very clear, because the last thing we need is for this person, whoever it may be, to go on to bigger and better things at another institution, because they do not know about the misconduct that they’ve had at other institutions. So, transparency is really a big key to moving this forward and making it effective.

When you talk about what the punishments are, what should happen to these individuals, I think it’s really on a case-by-case basis. There are different types of harassment that happen.

Some of the harassment is egregious and is completely unacceptable. There’s some that is more modifiable behavior or can be improved upon with education. So, I think it really needs to be taken on a case-by-case basis. See if this is something where it is something that is teachable.

Addressing misconduct requires a holistic approach—one that includes robust reporting, investigation, and corrective action procedures. Without these policies and procedures in place, there will continue to be a lack of reporting.

Shea Holman

Can the person be remediated? Can the person improve upon what they are? Or is it a case where there’s no way that this person should be able to practice medicine, or teach fellows, or be a part of trainees.

I think that it really is a case-by-case basis. And we really need to identify the people who can be rehabilitated and those who cannot and should not be interacting, whether it’s with patients, or with trainees, or with colleagues.

SH: NIH needs to take any reports that come in via this new statutory guidance and ensure accountability in each substantiated case. 

NIH needs to ensure that grantee organizations are conducting investigations that are timely, thorough, and effective, and both the perpetrator and complainant need to be informed of any outcome of an investigation. 

When a funded institution reports harassment to NIH, NIH needs to work with the grantee organization, as well as other federal agencies to determine what corrective actions are appropriate. 

Actions may include approving the institution’s substitution or removal of personnel from an NIH grant, restricting award funding, and/or suspending or terminating the grant award. 

NIH should consider creating a corrective action matrix for grantee-institutions to adopt that address the options for corrective action for incidents of every type and degree of severity that could happen in the workplace, and ensure the matrix is consistently applied across NIH entities when claims are substantiated. 

NIH should make clear that individuals are encouraged to continue to report allegations directly to NIH via the reporting channels already in place.

With respect to creating transparency by communicating cases to the public, it is unclear whether the reported information would become public record under this new legislation. NIH should collect and publish data on reports of misconduct that occur within NIH and NIH-funded entities. 

Congress could require NIH to collect data and draft an annual report on sexual harassment and  discrimination within its institutions. 

For example, Congress requires an Annual Report on Sexual Assault in the Military, which is shared with Congress and publicly. The report includes FY reporting data, case dispositions, and updates to initiatives the Department of Defense executed throughout the year. 

Collecting and publishing this data ensures transparency and tracks the impact that policies and practices are having on workplace misconduct and accountability.

I was just completing some required training courses for grad school, modules on sexual harassment and integrity. They provided a scale of corresponding consequences for violations of integrity i.e., here are proportional punishments according to severity of the violation. Do you think a framework like that might be useful from NIH?

SJ: I think it could. I think it absolutely could, because then, again, it showcases and exemplifies the fact that there are different levels of behavior that should not be tolerated. And all of them may be bad, but some of them can be reversed. Some of them can be taught. Some of them cannot.

So. I think having a framework and having a structure of different levels of harassment and what the consequences are for each would be extremely beneficial.

On a personal note, throughout these past few years since we started interrogating this issue in The Cancer Letter, I’ve had many informal conversations with friends and professional contacts about whether they experienced sexual harassment at work—mostly mid-career women in academia, policy, or law.

The one response I always get is, “Well, where do I start?” This is then often followed by, “That’s just reality. As a woman in this business, you have to be tough, you’ve got to push through it and be successful.”

Some part of that doesn’t feel okay to me. How do we change that?

SJ: It goes back to culture change. I think, one, talking about it more and addressing it and identifying it. That is huge. Ten, 15, years ago, this stuff wasn’t being discussed as much as it is now.

I think that is a real huge part of culture change. Because, now, more and more people, men, especially, who haven’t experienced this, are now realizing this is happening to their colleagues, and they don’t find that acceptable either.

So, it requires allies. It requires a team-based approach, and it requires leadership, from the top down, to realize this is a cultural issue. 

I mean, it’s happened to me more times than I could count. I could write a book on the number of times things have happened to me that are completely unacceptable.

And I’ve just pushed through. I’ve managed to make my way through, and I’ve been able to succeed, despite these issues. But it should not be that way.

We need to be fighting for systemic change, and we need both men and women involved in that fight to make the system better, to work towards changing the way our culture is currently set up. Because the sad thing is that it’s in society, and it’s in health care. It’s everywhere.

So, we need to lead by example in medicine, and we need to change things in our own house. We just need to be changing things, from the top down, and making system changes. 

That’s how we change it for the future.

Associate Editor
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