The Cancer Letter’s roadmap for reporting harassment

In collaboration with “The Wolfpack,” a group of women in oncology, The Cancer Letter has created a guide to help whistleblowers act strategically as they report gender bias and confront institutional resistance. 

The Wolfpack, a Facebook forum open to women in oncology and hematology, has fostered debate around systemic gender-based harassment in medicine since its founding in 2015. The Facebook group currently has 1,900 members. The Wolfpack is also on Twitter (@HemOncWomenDocs). 

I think any support that we can offer women—to report things, to recognize things—will break the chain of people being allowed to silently resign and go to another institution, where the behavior is just perpetuated over time. Anything we can do to break that cycle is extremely important.

Joleen Hubbard

Earlier this year, The Cancer Letter published a story about a male oncologist who pursued improper relationships with women he mentored (The Cancer Letter, May 28, June 4, 2021). In response, several Wolfpack members pointed to the absence of a how-to guide for whistleblowers as they navigate reporting systems at their institutions.

“These are difficult issues, and there’s not a lot of discussion about how to bring these issues forward,” said Wolfpack member Joleen Hubbard, a GI medical oncologist and associate professor of medical oncology at Mayo Clinic. “So, I think any support that we can offer women—to report things, to recognize things—will break the chain of people being allowed to silently resign and go to another institution, where the behavior is just perpetuated over time. Anything we can do to break that cycle is extremely important.”

In June 2021, The Cancer Letter conducted a survey of Wolfpack members to identify questions about confronting harassment—from building a strong case, to protecting one’s identity, to requesting information about a perpetrator’s history of misconduct.

A summary of the Wolfpack survey responses appears here.

The Cancer Letter assembled a panel of five experts in employment law, whistleblower law, medicine, asking them to address the questions from Wolfpack members—thus creating a roadmap to navigating gender-based harassment in oncology. 

The panel included:

A summary of the panel’s key findings appears here.

The Cancer Letter’s navigable guide to reporting harassment in oncology, based on the panel’s expertise, appears here. 

What women in oncology want to know

The survey The Cancer Letter administered to the Wolfpack members asked:

• What questions do you have that you would like The Cancer Letter to ask a panel of legal experts?
• If you were reporting sexual harassment, what protections or provisions in the process would you like to be afforded?
• Is there anything you’d like to add?

Wolfpack members expanded on these questions and pointed to areas of confusion. Here are some of their responses, verbatim: 

• What level of documentation or reporting is required to hold an individual accountable—are text messages and email sufficient, or does the misconduct need to be witnessed or experienced by others for a case to be reviewed closely?
• Is there a national system to report individuals who have sexually harassed others at work?
• How is it legal for academic entities to hide records detailing misconduct from the next place of potential employment for a disruptive MD?
• Can anonymous reporting occur, or can you ask for an investigation concerning a previous institution?
• Whom should a trainee report harassment to in order to maximize repercussions to the harasser and minimize retaliation in a training setting? ACGME? (It’s 100% not the program, hospital, or department, they enable the behavior in the first place.

The Wolfpack survey results were consistent with an earlier survey by The Cancer Letter, in which 62% (n=78) of women said they chose not to report incidents of harassment—and all the women who did lodge complaints said their institutions’ responses were inadequate or harmful to them (The Cancer Letter, Oct. 2, 2020). 

Both surveys revealed a disconnect between the harassment policies, training, and reporting structures many institutions have in place and what those in oncology and hematology experience.

The panel weighs in

Addressing gender-based misconduct in oncology is going to take so much more than surface-level workplace policies, The Cancer Letter’s panel said. 

“No more check-the-box trainings to fulfill some kind of rule,” said Reshma Jagsi, deputy chair of radiation oncology, Newman Family Professor of Radiation Oncology, Residency Program director, and director of the Center for Bioethics and Social Sciences at the University of Michigan. “By the time we’re focusing on reporting, it’s already happened, and that’s pretty bad.”

“You have the policy and you have the office—but it isn’t really a commitment to everybody being able to thrive in their workplace,” said Eileen Barrett, associate professor of medicine at the University of New Mexico and American Medical Women’s Association Advocacy Committee vice chair.

“We are literally losing women from medicine because of this,” Barrett said. “We are driving people away from our institutions because of this. We need their hearts and we need their brains to take care of the patients and to help us do better.”

We are literally losing women from medicine because of this. We are driving people away from our institutions because of this. We need their hearts and we need their brains to take care of the patients and to help us do better.

Eileen Barrett

Technically, institutions are responsible for preventing and managing gender-based harassment. However, whistleblowers should understand their rights as well as the procedures that are invoked as complaints are filed. 

This is something institutions don’t seem to be advertising. 

“According to research conducted and shared in 2020, many physicians (54%) said they did not report an incident because they did not feel it was significant enough,” said Shea Holman, director of law and policy at the Purple Campaign. “However, many also did not know whom to report the incident to (42%) or how to report it (19%).”

The panel walked through the steps of the reporting process, starting with identifying harassment. 

Gender-based harassment encompasses a broad range of behaviors beyond overtly sexual advances, panel members Jagsi and Drobac said.

Anything that makes an individual uncomfortable is reportable, even if it doesn’t warrant a lawsuit. Physical or digital evidence isn’t necessary. 

When an alleged offender claims that their behavior falls in a “gray area” or that the rules are too confusing—an issue cited by the Wolfpack survey respondents—they don’t have much ground to stand on, panel members said. 

“Most employers now have policies that pretty much track federal law, at least with respect to the sexual harassment,” said Jennifer Drobac, the Samuel R. Rosen Professor of Law at Indiana University Robert H. McKinney School of Law. “But, some people don’t know where the boundaries are. Basically, some people say, ‘Oh, it’s so confusing.’ And I’m like, ‘No, it’s not.’ That’s an excuse. That’s an excuse for not being discerning. If you can’t say it in front of Great Aunt Bessie or Old Uncle Mordecai, then you can’t say it at work or at school—common courtesy and decency. If you wouldn’t say it at a funeral, don’t say it at work.”

“It means different things to different people to see gray,” Barrett said. “This is why there should be experts.”

The panel identified the resources—which are admittedly limited—available to those seeking counsel, support, and protection throughout the reporting process, given what Holman called the “significant barriers that exist to reporting internally.” 

Colleen Coveney, a partner at Katz, Marshall & Banks LLP, noted that if an individual has questions about their rights and the processes available to them, they should consult a lawyer. 

“I think it’s important that women and men—employees—understand their rights, and to the extent that they feel like they’re being mistreated, understand the reporting mechanisms in place to take advantage of to address it,” Coveney said. “And if that fails, or even if they want some advice before going to their employer about it, to not hesitate to seek out legal advice.” 

But even if there are tools available to those experiencing harassment, medicine still needs a major overhaul, with harassment prevention efforts built into every facet of medical training and practice. 

“There’s no centralization,” Barrett said. “There also aren’t clear best practices. In medicine, there are a ton of things that are recognized as best practices. There have been some best practices [for sexual harassment policies] that have been proposed, but there aren’t any that we have consensus over. And I think that’s what we really need—and something that we can do.”

That change needs to start now, Barrett said.

“It’s not like we just have to wait for culture writ large to change or wait for every medical school and every residency and every institution to change,” Barrett said. “There are best practices and those best practices can be adopted.”

Navigating gender-based harassment in oncology: a roadmap

What is harassment and what makes it reportable?

Jennifer Drobac: Anything that you think is sexist or uncomfortable, based on sex, that’s reportable. It doesn’t have to rise to the level of actionable. And what I mean by actionable is it doesn’t have to be severe or pervasive enough that you could file a federal lawsuit over it. So, it’s still sexual harassment, even if it’s not actionable, as long as it’s unwelcome and based on sex. 

I basically talk about three types of gender-based harassment. The first is what people normally think about when they think about sexual harassment. They think about Harvey Weinstein-like overtures, Bill O’Reilly, Bill Cosby, sexual advances or requests for sexual favors or coerced sexual activity. 

As long as it’s unwelcome at some point, then that’s when it veers into the area of being illegal. So, whether it’s a supervisor and a subordinate or even coworkers, an institution or an employer might be liable. 

Now, note that under Title IX, which is equal opportunity in education, the standard is “severe and pervasive.” That is, conduct must be severe and pervasive and basically disqualify someone from obtaining an education. So, it has to be really egregious under Title IX. Under Title VII, which is the employment prohibition on sexual harassment that is found in the 1964 Civil Rights Act, that is “severe or pervasive.” Now, to complete all of this further, most states have state civil rights acts—state civil law—which prohibit employment discrimination or discrimination in education. But those state laws have varying levels of teeth, if you will. 

So, California law is really attractive for workers. It really protects workers. There are no damage caps under the California Fair Employment Practices statute. For example, California law applies to employers with one employee. Title VII applies to an employer with 15 or more—so it doesn’t apply to most “mom and pop” shops. 

And, for example, the Indiana Civil Rights Act applies to people with six or more employees, but to sue under the Indiana Civil Rights Act, you need to get permission from the employer who will agree in writing to be sued under the Indiana Civil Rights Act. Well, how many employers agree in writing to be sued? None. 

The Indiana Civil Rights Act doesn’t allow for compensatory damages for something like pain and suffering, and there’s no right to a jury trial under the Indiana statute—so at that point, Title VII, the federal statute, is much more attractive.

Okay. So, you’ve got the federal system versus the state systems, you’ve got varying degrees of seriousness of the law, varying standards, depending on whether it applies in education or whether it applies to employment. The interesting thing in the medical field is that a lot of people who are still “in their education phase” are already earning money through an employer. So, at that point, both Title VII and Title IX might apply.

What qualifies as reportable is basically anything. 

Anything that you think is sexist or uncomfortable, based on sex, that’s reportable. It doesn’t have to rise to the level of actionable.

Jennifer Drobac

So, I took you through sexual harassment, then the other kind of sex-based harassment is harassment that’s not sexual, but it’s hostile, it displays animus. So, “Women shouldn’t be doctors, they should be nurses.”

Then the third type of actionable harassment is where the behavior isn’t sexual, and it might not be openly hostile, but it has a disparate impact on one sex or one gender or one sexual orientation. 

So, for example, a job posting, which says 75% travel required. Well, if the job itself really requires 75% travel, fine. But that could be a veiled attempt to exclude women and preserve a lucrative job for men. Because what happens is that it’s still a fact that women tend to do more of the childcare and domestic responsibilities of a heterosexual partnership. In which case, if you put a label or a tag, 75% travel required, that’s going to exclude many women who have children. Because they will typically be the primary caretaker of those children.

Now, again, that’s a gross generalization. Sometimes dads are the primary caregivers, but you can see where that goes. 

You get the idea: Some job-related statement or policy or something, which has a disparate impact on a protected population. 

Those are the general categories where these behaviors tend to fall, and even a minor violation of a policy or a minor infraction against someone should be reported, per whatever company or educational system policies there are, just to keep it a clean and healthy environment. Now, it doesn’t mean that it necessarily will result in a federal or state lawsuit, because it wouldn’t typically hit the severe pervasive or the severe and pervasive standard.

Now, what if they don’t have a clear policy or their policies are murky? Most employers now have policies that pretty much track federal law, at least with respect to the sexual harassment. Some of them are not really clear that sex-based hostility is actionable, but most people get a sense that it’s not right. 

But, some people don’t know where the boundaries are. Basically, some people say, “Oh, it’s so confusing.” And I’m like, “No, it’s not.” That’s an excuse. That’s an excuse for not being discerning. If you can’t say it in front of Great Aunt Bessie or Old Uncle Mordecai, then you can’t say it at work or at school—common courtesy and decency. If you wouldn’t say it at a funeral, don’t say it at work.

Even if the people who are your direct audience are not going to be offended, you need to be careful because there may be other people in earshot that would be offended. Under Fisher vs. San Pedro Peninsula Hospital, a California case, if people in the vicinity are hearing this kind of conduct, even if the direct target is not offended, if those people in the vicinity are offended, it could be considered reportable harassment, whether or not, again, it’s actionable. 

You have to be living in a dark age if you don’t have a policy yet. Some places have been very thoughtful about this and some are just taking language from some federal statute and it’s pretty bare bones.

Different institutions tend to take this stuff more seriously than others.

Colleen Coveney: The standards vary depending on the jurisdiction or the law that you’re going to be claiming harassment under. For federal law, you have to show that the harassment is severe or pervasive, and harassment is only unlawful to the extent that it is based on a protected trait. Federal and state law carve out a bucket of traits that an employer or a supervisor, they can’t target you based on that trait. So, in the case of sexual harassment, that’s based on your sex.

When reporting and identifying harassment, it’s important for whoever is reporting it to make clear to the employer that they believe that they are being harassed, either severely or in a pervasive manner, based on their sex. 

In terms of reporting it for purposes of employment, you don’t necessarily have to show that it’s severe or pervasive. 

That’s what you need to share if you went to court, but if you want to notify your employer of potential problems in the workplace or behavior that’s making you feel uncomfortable, I think it’s just important to provide as much detail about the harassment to the employer so that they have the information they need to investigate.

Reshma Jagsi: The National Academies of Sciences, Engineering, and Medicine’s 2018 report disseminated this metaphor that sexual harassment is like an iceberg, and we tend to focus on the tip of the iceberg—coercive advances, quid pro quo, unwanted sexual advances. 

These are only a minority of the behaviors that actually constitute the construct of sexual harassment as defined by scholars in psychology and women’s studies. Social scientists will define sexual harassment as encompassing all behaviors that systematically demean or derogate or humiliate individuals on the basis of their sex.

And in fact, gender harassment—the sexist remarks and crude behaviors that lie underneath the surface that we often don’t notice, those are driving the particularly higher rate of sexual harassment shown in those reports experienced by female medical students.

Eileen Barrett: I think that there’s a lot of different dimensions for what happens in the gray. It means different things to different people to see gray. There is: is that what happened to me? Is that what I did? Is that what I witnessed?

I think that the bigger question, that is more important, though, is that this is why there should be experts.

It’s not about what I do. It’s not how I respond and it’s not how I felt about what happened. It’s what we as an institution and what we as an oncology group and what we as medical educators and we as responsible citizens and as people who care about people, do. We’re talking about people here, right? 

And I say that because we all use the parlance of our professional identity when we talk about “cases”—but these are people and people deserve better. So, it’s not about what is my response, what I think, it’s what do we decide as collections of people, that will be our response to problem with sexual harassment. To be willing to have the humility that there is expertise. 

There’s no centralization. There also aren’t clear best practices. In medicine, there are a ton of things that are recognized as best practices. There have been some best practices [for sexual harassment policies] that have been proposed, but there aren’t any that we have consensus over. And I think that’s what we really need—and something that we can do. 

We have these reports that come from the AAMC, the ACGME, our professional societies and the journals where people write about these problems. But we lack a very clear, tactical “this is what everybody should be doing.” And then also having these large accrediting bodies saying, “this is what we want everybody to do.” 

I commend the accrediting bodies that have come out and said this is unacceptable and we need to do something about it. The next step would be not unlike what we do in the evolution of the model for patient safety. You know, we have checklists in the OR, we have checklists throughout medicine. This is something that we can be systematic about, and we aren’t yet. 

One of the things about oncology is that there’s so much evidence. Oncology is so richly and robustly researched that, actually, the oncology field is a great model for this. There’s evidence, evidence is publicized, people aren’t just doing things in a vacuum—they’re following guidelines that are widely recognized. 

Everybody knows what it looks like for someone to veer from the guidelines. There are tumor boards, which is how we bring multiple experts together to improve care. That is a model for which we can think of this. You don’t have to try to figure it out on your own, because there is a tumor board with all of your expert peers together, factoring in the many different dimensions and the many different versions of what is going on. 

That is exactly the sort of model that sexual harassment in medicine needs. So that it’s not one person in an office somewhere thinking the phone is gonna ring, because someone wants to report only the worst possible case scenario for sexual harassment. 

Instead, that it’s embedded in everything that we do—a shared mental model for, what is the scope of the problem? What is the way forward? And what will we do in these areas of gray?

How does academic medicine allow sexual harassment to perpetuate?

Jagsi: If you read the [NASEM] reports, they talk really nicely about the culture of medicine and how—there’s a quote in there, and you can find it because I’m going to paraphrase it, I’m going to paraphrase it wrong—but it’s something like, medical training is like a series of human rights violations. 

And so, in that context, sexual harassment doesn’t really stand out. 

[From the 2018 report: As one nontenure-track faculty member in medicine noted, “But, the thing is about residency training is everyone is having human rights violations. So, it’s just like tolerable sexual harassment.”]

There has been a very hierarchical work culture. You can understand why sometimes you need hierarchy. If you’re in the operating room, you need your attending surgeon to be in charge and you need someone who’s the captain of the ship. 

So, hierarchical work environments, historically male-dominated professions, those are the things that predispose to incidents of harassment. Ultimately, we have to change the culture and, again, be respectful towards one another in a way that then eradicates that environment within which harassment thrives. 

It’s the culture and the hierarchies. Some of it is completely understandable and it’s good. We want physicians to have not just a skills-based education, but a moral education, to learn that when they join this privileged profession, when we become physicians, we learn to appreciate that with that privilege comes a responsibility that we need to put our own needs second, that we need to be incredibly diligent and devoted and focus on our patients’ needs. 

One of the ways that we’ve traditionally done that in academic medicine is by insisting that our trainees work very long hours, for example. 

So, it’s just one of many ways that we ask our future colleagues to begin to act and not focus on their own needs, but it can go too far if it then leads to true mistreatment and disrespect for their own humanity. I mean, these are human beings, these are our future colleagues.

Drobac: These guys—it’s typically men, but not always, but the vast majority of the cases are men—they somehow can smell vulnerability and they exploit it. And again, not all of them do that, there are many fine doctors who are quite responsible with their reports and all that, but a few bad apples in the barrel creates a difficult environment.

Particularly where there’s high stress, like in medicine where it’s sometimes life and death, people often revert to a macabre sense of humor in order to deal with their stress. It can be very sexualized and therefore can be very offensive to women and to people from other cultures, for whom this is not a common way to behave or an acceptable way to behave.

These men have the power, but I wonder if, because of the nature of the job, they are constantly striving to keep it—to keep on top, literally keep on top. And they do that by dominating the women underneath them. As we know, sexual harassment is more about an abuse of power than it is about sex. Sex is merely the methodology.

What can be done at the stage of reporting? Do I need evidence, and if so, what sort of evidence do I need?

Drobac: Does an individual need physical or digital evidence? No, no, no.

Physical or digital, as in email/social media, evidence is required, but in the sense that somebody’s verbal testimony is evidence. 

So, when I say, “Bob said, ‘Sleep with me and you’ll get an A,’” my testimony that Bob said that is evidence. Now, it may be hearsay. That is, I heard Bob say that. And so, they’ll ask Bob, “Did you really say it?” and Bob will, of course, lie. So, then it’s a he-said/she-said case. And the question is, who’s more credible? Who has more to gain or lose? 

Digital evidence is not necessary, but it sure is useful, because people are inclined not to believe women.

If you have any evidence that’s useful—but evidence could include, Bob harasses me and I go home to my roommate Sally, and I say, “Sally, guess what Bob said to me today?” That means Sally is a witness to my contemporaneous observation of the situation. 

Anita Hill spoke to people at the time about what she was experiencing with Clarence Thomas. She didn’t give gory details, but they knew that she was having trouble at work with Clarence Thomas, and they were able to testify to that, to bolster her testimony and to add to her credibility. So, any kind of keeping a diary, keeping notes, telling friends, that type of thing helps in a case.

Digital evidence is not necessary, but it sure is useful, because people are inclined not to believe women.

Jennifer Drobac

People say that, “Oh, these cases are really easy to bring.” That also is completely mistaken. See Anita Hill, see Christine Blasey Ford, see anybody else who’s tried to bring a sexual harassment case. It’s really difficult. 

I would say to any target, first and foremost, make yourself safe, take care of yourself first, put your own oxygen mask on before the person sitting next to you. Once you’ve got your oxygen mask on and you’re safe, then report it, because with privileges, with elite education, with opportunity come responsibilities, in my opinion, and this stuff doesn’t get cured and corrected until we call it out. 

The more of this the better. And it may not make a difference in case number one, case number two, but maybe by case number 100, the difference will be made. That 100th case will be the straw that breaks the camel’s back. And that we finally start seeing headway on this problem.

Coveney: It’s not necessary that you have evidence to report. I think the most important thing for the person experiencing harassment is just that they want it to stop. So, I don’t think that people should feel inhibited coming forward because they don’t have evidence. But if they do have evidence, that is always helpful. 

To the extent they believe that they’re being harassed, they should follow whatever reporting mechanisms are in place. It’s usually in the employment handbook or HR policies—report the harassment to human resources or whatever person is identified by the company as the person to receive the report. 

It’s often good to do it in writing so you have documentation of what you said and what you reported. There’s hesitation, sometimes, by employees to put that kind of stuff in writing, so it’s also fine to do it orally.

Jagsi: Every institution is required to have offices that address Title IX and Title VII violations, depending on their type. Academic institutions typically have a Title IX office. Those reporting processes that are developed by institutions should ideally be diverse in every way that they possibly can be. So, there should be a multiplicity of options for how to report. Diversity is important in terms of formal versus informal, confidential versus identifiable. 

Also, the complaint handlers should be diverse in every way. So, there should be people who are senior within the organization, people who are more junior, people who are diverse in every way you can think of. 

By gender, by race and ethnicity, by every other criterion you could think of to make the reporting system more accessible. But even if you do all of that, I want to emphasize that focusing a lot on reporting systems is probably less effective than focusing upstream before the behavior happens.

Shea Holman: New apps are also giving employees better alternatives for reporting. These apps, including Allvoices and Vault Platform, are making it easier for employees to report issues to their organization.

On these apps, users can submit their reports anonymously. Anonymous reporters need not fear repercussions, because nobody knows the identity of the person who reported the harassment. 

While some organizations have offered anonymous reporting hotlines for years, the apps offer one key benefit over current corporate hotlines. The organization can conduct follow-up, ask questions and offer help via the app—all while preserving the anonymity of the individual reporting the harassment.

In addition to the anonymous reporting option, users of the Vault Platform app have another alternative. The “GoTogether” feature enables employees to submit their reports under the condition that they’re not the first or only person complaining about a particular perpetrator.

Finally, employees can use the apps to keep a record of harassing behavior without reporting. This record-keeping may help employees who think that one particular incident isn’t egregious enough to report but want to document an incident in case the misconduct continues to occur.

When do I talk to a lawyer?

Holman: Making a decision to pursue legal action is highly individualized and should ideally be made in consultation with an employment lawyer. The TIME’S UP Legal Defense fund provides pro bono legal advice and services to individuals dealing with harassment or related issues.

Coveney: For employees who believe they are facing sexual harassment in the workplace, I think it would be prudent for them to at a minimum reach out to counsel, to get advice on what they’re experiencing, counsel as to whether it’s actual sexual harassment, and advice on how to protect themselves in the workplace.

That’s just a smart first step to understand what the law says about the situation, to understand what their rights and obligations are and seek advice on how to navigate it. It’s not always necessary, but it’s not a bad idea. 

Every employee is different in terms of what they want out of reporting. Some employees want to just inform the employer and hope that they address it and move on. If it doesn’t seem like the employer is going to address it, or the employee feels it needs to be addressed in a different way, there are legal avenues to address sexual harassment in the workplace. It really depends on the facts and circumstances of the case. 

I think it’s important that women and men—employees—understand their rights, and to the extent that they feel like they’re being mistreated, understand the reporting mechanisms in place to take advantage of to address it. And if that fails, or even if they want some advice before going to their employer about it, to not hesitate to seek out legal advice.

Colleen Coveney

And that’s a question for the employee, in terms of what he or she wants out of this.

Certainly, if an employee is fired because of retaliation or because of something stemming from the sexual harassment, at that point the employer is no good to them in terms of addressing the harassment because they’re no longer an employee. 

So, once the employee leaves employment, either because they’re fired or they feel they’ve been constructively discharged, seeking legal counsel is probably the best avenue.

I think it’s important that women and men—employees—understand their rights, and to the extent that they feel like they’re being mistreated, understand the reporting mechanisms in place to take advantage of to address it. And if that fails, or even if they want some advice before going to their employer about it, to not hesitate to seek out legal advice.

Other than my institution, where can I get help?

Barrett: I would say that if someone reaches out [to AMWA] , there is peer support and mentorship in navigating the process. There are lots of people who, when they have reached out, have received assistance with navigating, “What are the processes in place?” It’s not enough, but there is [policy] that is available for every woman in academic medicine and any woman in every job, related to employment law. 

Because there is no centralized database, there isn’t anyone for AMWA to report it to.

Holman: According to research conducted and shared in 2020, many physicians (54%) said they did not report an incident because they did not feel it was significant enough. However, many also did not know who to report the incident to (42%) or how to report it (19%). Given the significant barriers that exist to reporting internally, providing employees with multiple options to report (such as anonymously, online, via phone, or to one of several individuals within an institution) and being transparent with employees on how to utilize these channels may encourage staff to report.

Institutions such as NIH have established various channels of communication for individuals to report, including a dedicated mailbox “granteeharassment@nih.gov” to receive notifications of possible violations of NIH policy or rules. 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-institution. It should be noted that there have been some concerns recently with NIH follow-up on reports fielded through this channel, so it is important for individuals making reports to monitor their report closely to ensure it is being addressed (The Cancer Letter, Sept. 24, 2021).

Editor’s note: We reached out to the Accreditation Council for Graduate Medical Education to inquire about filing complaints.

Susan E. White, vice president of communications, ACGME: ACGME has both Common Program Requirements and Institutional Requirements addressing harassment.

• IR III.A (the Sponsoring Institution (SI) and its programs must provide residents/fellows with opportunities to raise concerns without intimidation/retaliation)

• IR IV.H.3 (the SI must have a policy that allows residents/fellows to raise and resolve complaints about sexual and other forms of harassment)
• CPR VI.B.6 (programs and SIs must provide environments free of sexual and other forms of harassment, mistreatment, abuse and coercion of students, residents/fellows, faculty and staff)

All of these requirements are intended to protect residents/fellows from harassment/abuse in the learning environment. Residents/fellows should be able to report sexual harassment through the process in place locally at their institutions.

Anyone who has concerns about a residency or fellowship program is welcome to contact the ACGME. The ACGME has two different offices that address reports of training-related issues or allegations of non-compliance with ACGME requirements: the Office of the Ombudsperson and the Office of Complaints.The Office of the Ombudsperson can help a resident locate internal resources within their institution for how to report harassment if he or she is unfamiliar with the institution’s policies, or report allegations to institutional leadership that may prompt an internal investigation within the institution. Anyone with knowledge of a program also has the option to file a complaint that alleges non-compliance with ACGME requirements which may impact the program’s or institution’s accreditation status.

Is it reasonable to expect anonymity when reporting?

Drobac: No. Anybody who says, “We’ll keep this anonymous”—okay, well, number one, they’re lying to you, because they can’t. At some point, an investigator is going to have to confront the alleged harasser.

Hopefully, the investigator will investigate all the witnesses and get cooperation and get a really strong case before their person goes to the harasser, because a harasser will lie—or, in rare cases, they’ll say, “Oh my God, yes, I did say that, but I didn’t know she was offended.” I had one case where a reporter called the harasser and said, “The complaint says that you had your secretary sit on your lap and kiss them.” And he was like, “Well, what kind of a crime is that? Did it say I raped anybody?” He actually said that to a reporter.

But most people are not that stupid or arrogant or brazen, not these days. They’re pretty savvy to this. And so what’s going to happen is the investigator will have to investigate. But once the investigator goes to the perpetrator and starts questioning, “Well, did you ever do something like X or did you ever do Y?” the perpetrator may put two and two together and figure out who the complainant is. Or other witnesses will, or it will have gotten out. And then, people will talk. 

So, what they say is, we’ll keep this confidential on a need-to-know basis—and then try and keep it under wraps. When I’ve done investigations, I’ve tried to say, “Have you ever heard anyone say X or something related to that?” You don’t use the complainant’s name, you try to make it broad enough that you’ll get some accurate responses, but you won’t out anybody. 

But that’s pretty difficult to do. So, you keep it quiet on that need-to-know basis—HR needs to know, the president of the company needs to know, the dean needs to know, the harasser needs to know what the allegations are so that the harasser can refute them or explain them.

Jagsi: What tends to be more useful [than anonymous reporting] are confidential systems, and in particular ones that could be modeled on campus sexual assault reporting processes that allow you to say, “Look, I don’t want my identity disclosed unless several other individuals come forward. Keep it confidential until then. And if X number of other people report this same perpetrator, then I’ll be willing to come forward because I don’t want this to happen to other people.”

Holman: In our work, we have seen that many companies have codified in their anti-harassment policies the guarantee that confidentiality will be protected to the fullest extent possible. Organizations also conduct mandatory anti-harassment training for their employees that provide information on confidentiality requirements and privacy policies so all employees are aware of the expectations. 

Employers should strive to maintain the confidentiality of employee claims to the best of their ability. At the same time, we also know that the employer must be able to conduct a prompt and thorough investigation.

Coveney: I understand the concern, we see that frequently with our clients, and it really depends. Employers should have policies in place about reporting harassment. These policies will usually address how investigations of these types of reports are carried out and the level of confidentiality that the employer intends to give to the person reporting harassment.

I think that employers are mindful of the fear from employees in reporting this, and when employees report, they should express it: “I fear retaliation, and I do want some level of anonymity during the investigation, so I don’t get retaliated against.” 

At the same time, when an investigation is underway, in order to gather evidence, it’s often necessary to divulge some level of information about whatever the incident was and the person reporting so the other person has a chance to respond. I don’t think it’s realistic to expect that workplace investigations like this are going to be completely anonymous when you report.

Are there ways to stay protected from retaliatory action?

Holman: The concern about protecting oneself while reporting is a valid one. Reports of sexual harassment are often met with minimization, hostility, and retaliation. Of people who had spoken out about their workplace mistreatment, 75% faced some form of retaliation. With that being said, employers are not allowed to retaliate against employees for actions such as:

• Filing a discrimination complaint or being a witness in a discrimination investigation or lawsuit,
• Communicating with a supervisor about employment discrimination or harassment
• Answering questions during a discrimination or harassment investigation, 
• Refusing to follow orders that would result in discrimination, or 
• Resisting sexual advances or intervening to protect others.

If you believe you have been the subject of illegal retaliation, there are various resources available:

• The Equal Employment Opportunity Commission is the federal agency that enforces the federal laws against job discrimination and harassment.
• State and local fair employment agencies also enforce state and local laws against job discrimination and harassment. You can find contact information for your state agency here.
• The TIME’S UP Legal Defense fund provides direct services to individuals dealing with harassment and retaliation.
• BetterBrave provides resources and tools for targets of sexual harassment as well as allies.
• RAINN runs a national sexual assault hotline for victims of sexual assault. You can talk to someone by calling 800.656.HOPE (4673) or chat with a specialist online here.

Drobac: It’s really helpful when the top-down says thou shalt not retaliate, and they watch for it. If you’ve got a supervisor who’s all of a sudden assigning shitty hours—unattractive hours—and less attractive cases or not giving people training opportunities that all adds up to retaliation, or if the perpetrator is spreading rumors about a complainant—”So-and-so is a slut, she’s got a sexually transmitted disease,” or some other inflammatory allegation, that kind of gossiping and demeaning of a complainant, that’s absolutely inappropriate.

Employers and educators need to watch for that and usually need to neutralize the situation. So, making sure that the subordinate isn’t reported to the harasser, making sure that the harasser doesn’t have access to the subordinate’s work product, or is not good friends with the subordinate’s supervisor, so that you can prevent retaliation from occurring.

Sometimes, the underlying complainant will complain about behavior and there really isn’t a very strong case of harassment or discrimination, but then the complainant gets retaliated against. Then she has a good case. Because even if the underlying discrimination case can’t be made or proven, if she makes it in good faith, she can’t be retaliated against for making a claim in good faith.

Coveney: Employer policies almost universally prohibit retaliation for people who come forward to report sexual harassment and the law also prohibits retaliation for reporting sexual harassment. So, people who want to come forward should take some solace in the fact that there are these protections in place that prohibit the employer from retaliating against them for reporting sexual harassment.

That’s not to say that it doesn’t occur, but those protections are in place for a reason, to enable employees to come forward and freely report what’s going on in the workplace, and allow the employer to address it without the employee who reported it facing repercussions.

What about “passing the trash”—when institutions allow a perpetrator to resign quietly, passing them on to another position? Can I ask my employer about someone’s background?

Coveney: I think it’s good to get the harasser out of the workplace—but having that person fired and allowing them to leave quietly and giving them a big severance to leave obviously rubs the victims of their actions the wrong way. At the same time, that can easily occur as part of some sort of negotiated settlement where certain things are subject to confidentiality.

To the extent that a person litigates a sexual harassment case in court—evidence of the harasser’s past acts of harassment and whether the employer knew of the harasser’s proclivities to do that is certainly relevant information that can be discoverable in litigation. You could seek it from the employer, get documents from the employer, ask people about it in deposition, or issue third party subpoenas to former employers. 

Outside of the litigation context, seeking that information does implicate certain privacy concerns in terms of asking for information about an employee’s background, either from the current employer or past employers. Employee personnel files are afforded some level of confidentiality and they’re not just freely passed around the workplace. 

I don’t know off the top of my head of a mechanism by which an employee could do an investigation on their own in the workplace outside of the litigation context to get that information.

If the harassment is recorded, human resources would have that information and they may take that into account, but in terms of an employee going and requesting information for their own purposes, I do think they may run into some privacy or confidentiality issues.

It’s kind of an outlier, but if the employee is at a state institution, certain records are considered public records of state employers. The employee may be able to get information about the harassing employee through an open records request. But again, there are certain exceptions to open record requests and certain private and confidential information is not required to be disclosed.

Drobac: These institutions who try to cover it up—they think that by trying to cover it up and make it go away, they are in essence saving the reputation of the institution. They’d be much better off getting ahead of the story and saying, “Look, we had a problem, we’ve dealt with it and that person’s not coming back.”

Well, what you then as an institution do, is invite the harasser to sue you for wrongful termination, which does happen in education cases where an accuser makes an allegation—there’s an investigation, alleged perpetrator is dismissed, and then alleged perpetrator sues for wrongful dismissal or discrimination. In that sense, the employer may be between a rock and a hard place. 

I still advise employers: if you think you have a problem employee in the form of a perpetrator, a harasser, you’re much better off dealing with the short-term pain of acknowledging your problem and dismissing the harasser without a golden handshake, without a golden parachute, without a nice severance package. And maybe coming clean about it and saying, “We value all our employees, no executive is more important than any of our other workers, and we’re going to move forward from here.” I think that makes it a more attractive place to work. It fosters loyalty and dedication in your workforce, et cetera. And it breeds trust.

Any employee can ask pretty much anything—and, if an employee suspects a problem, his/her asking about a particular person might be advisable. The question alerts the company to a possible problem and, if the company responds affirmatively, that could provide needed information to a target. If the company responds untruthfully (or not at all), that might give a target some leverage in the future.

Jennifer Drobac

Employers have qualified immunity, in that they’re not responsible if a subsequent employer hires someone like Andy Rubin [of Google] or Harvey Weinstein and they later go on to harass again. But, if Employer Number One has said to Employer Number Two, “No, no, Harvey Weinstein has never been charged with sexual harassment,” and they know he has, that’s fraud and they can get sued for that. 

They have to be really careful in what they say by way of a reference to Employer Number Two. They can say dates of employment, salary as of the date of termination, but they shouldn’t be commenting on how worthy the guy is if he’s not. 

Any employee can ask pretty much anything—and, if an employee suspects a problem, his/her asking about a particular person might be advisable. The question alerts the company to a possible problem and, if the company responds affirmatively, that could provide needed information to a target. If the company responds untruthfully (or not at all), that might give a target some leverage in the future.

Why? Most companies have been advised to respond to prior employment history questions with information re: dates of employment and last salary. Most companies will not disclose prior problems because they don’t want to be sued (by the accused) for slander. However, if a company misrepresents a case or lies about the suspect-employee, that misinformation could potentially provide a target with a fraud claim against the company.

Discovery of a person’s background is difficult. If a prior claim has been filed with a state agency, some state agencies will produce prior charges when asked (for a window of time) with the names of the targets redacted.

Jagsi: Until our leaders recognize that they’re doing this to one another, and so they’re doing this to themselves—by having that culture of passing the trash, of allowing individuals who’ve committed egregious behaviors under their watch to silently be passed on elsewhere—until they realize that this is actually leading to others passing trash to them, and not creating an environment that any of us benefit from, I don’t think we’re going to see change.

The challenge is that nondisclosure agreements can be the most efficient way to protect one’s own organization and the people one is immediately responsible for. If one participates in such a nondisclosure agreement, that individual may go elsewhere and perpetrate that behavior. 

The problem is that in a system where that happens, your own organization isn’t safe either because someone else may pass you some trash.

Holman: Lawmakers and employers have taken steps to limit their use of NDA’s in cases involving workplace harassment and discrimination. As of 2020, 15 states have passed laws to limit or prohibit employers from requiring employees to sign NDA’s as a condition of employment or as part of a settlement agreement.

Under Oregon’s new Workplace Protection Act (WPA), for example, employers may not enter into an agreement with a current or prospective employee that contains a nondisclosure or non-disparagement provision regarding conduct that constitutes employment discrimination or sexual assault. Settlement, separation, or severance agreements may only contain such provisions if the employee requests them.

Barrett: People go on someplace else—there isn’t a mechanism where we report this, there is no national way to report. There’s the database that is for physicians who get reported to the database for inferior care. There is nothing like that for people who have sexually harassed someone else.

I’m not saying that that needs to be in the database—I’m not an attorney and I don’t want to say that, but we can do better here. There are not, that I’ve ever found, any guidelines on how sexual harassment is asked about in our medical license applications or asked of our peer references in our medical license applications. There are certain national guidelines or from the Federation of State Medical Boards, about what our applications should look like. And all of the years I’ve spent being a reference for people when they apply for their license or when they apply to be credentialed—years I’ve done this—I have never seen a single question that asked me to say if I knew that the person hadn’t harassed someone else.

Is there a disconnect between gender-based harassment policy in institutions and the reality of the problem?

Drobac: Yes. I mean, has Donald Trump ever been sued by the two dozen women that have alleged that he assaulted them or sexually harassed them? No. And is Clarence Thomas still on the Supreme Court? Yes. Is Brett Kavanaugh still on the Supreme Court? Yes. Do we have any question, any doubt that their accusers were telling the truth? I don’t think so.

Now, some people may say that Brett Kavanaugh did not do what Christine Blasey Ford said he did, and that she’s crazy. I don’t think that, and I think powerful men win. Sometimes they don’t—see Harvey Weinstein, see Bill Cosby, see Roger Ailes, see Bill O’Reilly—sometimes justice is done, but often powerful men come back. They skate, get lesser sentences, and the world is not fair. 

What are the pathways through which institutions cover up sexual harassment, even when they do have a clear policy? They basically will argue that it’s a he-said/she-said case, or, as in the case of Anita Hill, it didn’t happen, or she misunderstood what he was saying or the context, or she’s nutty, she’s slutty. 

There are ways that they can get around this and just argue. I mean, I remember in the case where I sued Stanford Medical School, my client had grieved her treatment as a research assistant to the faculty council, and the faculty council and the Senate had come up with a finding of sexual harassment and had recommended disciplinary action against Dr. Levine. And my client went to the then-president of Stanford, Gerhard Casper, and he sat on her case for over a year, until the month after the statute of limitations ran on all of her tort claims.

Then he said, “Yeah, there’s been a finding,” and he gave Seymour Levine a slap on the wrist.

Well, I had been mailed an unmarked sealed brown envelope with evidence from 15 years prior that Stanford knew about this guy as being a problem because he had sexually harassed four research assistants 15 years prior. And they just kept him on the staff.

Barrett: By the process that is in place, one can meet the requirements through check-the-box type processes. So, you have the policy and you have the office—but it isn’t really a commitment to everybody being able to thrive in their workplace.

When one is in a non-academic institution, then there may not be any regulations about what happens, and then it isn’t a prevention model or a reporting model, but it’s more trying to contain and control when a problem happen—with, often, the person who has been harassed being identified as the problem who needs to be contained and controlled rather than the harasser.

Jagsi: We’re coming at things a little bit too late. It’s very understandable why individuals who are reporting harassment are afraid of being re-identified and facing retaliation, stigmatization. It’s somewhat better when there are multiple individuals who are making reports, but there is a very real fear of the consequences of reporting.

So, efforts to eradicate sexual harassment in oncology and in the workplace more generally need to be focusing on culture change, promotion of civility and respect, to prevent the behaviors that are happening in the first place. Clear, well-disseminated policies. No more check-the-box trainings to fulfill some kind of rule, but true efforts to ensure that those kinds of behaviors are universally recognized as inappropriate—allyship behaviors by others within the organization that make that kind of behavior unacceptable to occur in the first place, because by the time we’re focusing on reporting, it’s already happened, and that’s pretty bad. 

No more check-the-box trainings to fulfill some kind of rule, but true efforts to ensure that those kinds of behaviors are universally recognized as inappropriate—allyship behaviors by others within the organization that make that kind of behavior unacceptable to occur in the first place, because by the time we’re focusing on reporting, it’s already happened, and that’s pretty bad.

Reshma Jagsi

Prevention efforts really emphasize the importance of civility and respect. They make it clear what behaviors are and are not acceptable. It turns out that the organizational psychologists have shown that sexual harassment is least common when employees believe that their organization itself is intolerant of harassing behaviors. 

How do you send that signal from leadership that we don’t tolerate harassing behaviors? You host workshops where people can talk about the impact of certain experiences, where they can, in a collaborative environment, talk about the way that certain behaviors make them feel and have affected them. Because what matters is not intent, what matters is impact.

So, having those kinds of discussions and meeting people wherever they are in terms of—somebody once described this to me as a behavior change wheel, like when you think about a smoking cessation. There’s pre-contemplation, there’s contemplation, and then you’re actually trying to quit smoking. 

In terms of allyship behaviors, there’s also like people who are like, “I haven’t gotten to the point of contemplating being an ally,” versus people who are like, “I could be an ally, but I’m not really sure how to be an ally,” versus people who are trying to be allies and need support as they’re doing it. 

You’ve got to meet people where they are. Those types of initiatives, retreats and rounds and programs where you bring together diverse groups that are working together and have them discuss issues that they may not necessarily be aware of because they just don’t confront them in their ordinary lived experience, but they can certainly begin to appreciate. 

Then they can move along that behavior change spectrum towards being allies and advocates for one another.

How is the handling of sexual misconduct in academic institutions evolving? What areas need the most attention?

Drobac: If you ask me, it’s not evolving. The Title IX standard is too onerous for plaintiffs to successfully bring lawsuits. And Betsy DeVos just gutted Title IX, in my view.

The problem that I’m seeing in academic institutions is number one, they’re dealing with often powerful perpetrators, tenured professors, top level executives, et cetera. And they’re sensitive to legislatures. They don’t want a conservative legislature to cut off funding for the academic institution because they have a problem that they haven’t gotten under control. 

And so they don’t want to admit to a problem, because they’re afraid that if they admit to it, more people will come out of the woodwork complaining against whoever. I mean, we see that all the time: Harvey Weinstein, Bill Cosby, Donald Trump. Once one person has the courage to complain, others tend to come forward, because usually these harassers aren’t operating in isolation. And so, institutions are not really anxious. 

Times change and progress is being made. #MeToo has caused a lot more understanding of the depth and breadth of this problem and that’s important. I think it has emboldened things like movements, like It’s On Us. 

More education is good. More discussion of this is good, more awareness of this leads to a better world. So, what would’ve passed 20 years ago, wouldn’t, I don’t think, pass today. 

That said, look at what’s happening in Texas. One step forward, two steps back. 

So, on my better days, I think there’s hope; on my Handmaid’s Tale days, we’re doomed.

Holman: Research reported at the 2021 annual meeting of the American Society of Clinical Oncology showed that bullying, gender discrimination, and microaggressions are [commonly experienced by] women in gynecologic oncology. Though many organizations have been working to promote diversity and inclusion in the workplace, inequity remains pervasive, and hurdles remain around embracing diversity in all its forms.

As we know, sexual harassment is more likely to occur in workplaces with predominantly male employees—and homogenous workplaces are generally more vulnerable to all forms of harassment. Improving diversity at the top rungs of institutions is crucial to reducing gender and racial inequity.

Barrett: Gender equity alone won’t get us there, but gender equity in every level of leadership—that’s part of why we want diversity, so that we can do our best. It’s not just for the photo op, it’s so that we can do our best.

It’s not like we just have to wait for culture writ large to change or wait for every medical school and every residency and every institution to change. There are best practices and those best practices can be adopted.

Ideally, accrediting bodies will start to get behind this. Speaking as myself, not as the advocacy co-chair for AMWA—what would it look like if the joint commission required every institution to have certain things that were very tactical? That is how we can also make broad change. And what if it was our payers—what if Medicare required that in order to be able to receive Medicare, you needed to have certain processes in place?

I mean, I can’t just wing it on patient safety. There’s a frame that is provided by Medicare for what you have to do. What if that also included things that had to do with sexual harassment? We can get there, we just have to keep doing the work and, you know, pace ourselves.

Also, I think among the things that we could think about at every level of every healthcare institution, could be having available funding for people to do research in this area. 

Because we fund what we care about. And we care about what we fund. 

I think that also all of our professional societies—and this is me as an individual, not me speaking on behalf of AMWA—but what I would like to see is that every professional society comes together through their own mechanisms to model best practice. 

Gender equity alone won’t get us there, but gender equity in every level of leadership—that’s part of why we want diversity, so that we can do our best. It’s not just for the photo op, it’s so that we can do our best.

Eileen Barrett

It was revelatory for me to go to, in this case, the American College of Physicians Meeting, where on every table, there was a piece of paper that says, “We have zero tolerance for sexual harassment in medicine. If you experience or if you witness it, this is our confidential way of reporting.” 

The people who are in the professional societies, they’re the leaders in their own institutions. So, they end up being awash in these best practices. I mean, we’ve all had the humbling experience of being at a medical conference, and someone mentions something as a best practice, and being like, “Oh, shoot, I’m not doing that.” That’s why we go to these meetings. We’re very explicit and we talk about our wins. 

It’s a paradigm shift. We literally can make these things go away. We used to think that patients in the hospital with catheters just get UTIs, rather than, “Oh my God, no, just take out the catheters—if people can pee when they want to pee, UTIs will literally go to zero.” So, we just think of this the same way.

We are literally losing women from medicine because of this. We are driving people away from our institutions because of this. We need their hearts and we need their brains to take care of the patients and to help us do better. So, we need to see this as a workforce issue.