Federal Agencies Dub Sexual Harassment “as serious as research misconduct”

By Elizabeth McEvoy, Esq.

For institutions closely following the progression of the evolving enforcement of Title IX in the academic and university setting and, most recently, the close scrutiny paid to “misconduct” cases across the scientific and non-scientific spectrums, NIH’s announcement earlier this summer that the agency would take more of a stand against misconduct should come as no surprise. It is safe to say that academic institutions charged with preventing research fraud and misconduct must now look beyond the four doors of the laboratory and even beyond the science itself.

Since NSF forged new ground almost one year ago by requiring that institutions report findings that an NSF-funded PI has been found guilty of sexual harassment, more and more members of the scientific community are embracing a robust view of ethical lab practices. No longer are lab leaders simply charged with creating good science and replicable results, but their behavior must abide by institutional ethical codes and not offend university norms. This is especially pertinent for the multitude of labs receiving funding from NIH, which has condemned sexual harassment as “morally indefensible” and issued a public apology for not doing more to combat sexual harassment in NIH-sponsored labs.

New report by NIH working group

Earlier this summer, a working group commissioned by NIH to advise the organization on how to improve its policies to better prevent sexual harassment in scientific research returned several “bold” recommendations.

1.       First, the group recommended that sexual harassment be treated “as seriously as research misconduct.” While the group did not recommend that NIH expand the traditional definition of research misconduct (commonly referred to as “FFP” to capture fabrication, falsification and/or plagiarism), the group proposed adopting new requirements on institutions holding active NIH grants to establish procedures for reporting sexual harassment that would “parallel” reporting mechanisms for other misconduct. The new processes would include a requirement that institutions inform NIH about investigations involving allegations of professional misconduct (including sexual harassment) within one week of initiating the investigation. Institutions are further encouraged to consult openly with NIH to determine disposition of grant oversight during and after the adjudication process.

2.       Second, the working group recommended that NIH require PIs and co-PIs receiving NIH grant money to confirm that they have not violated institutional codes of professional conduct. Most federal grants do not require an investigator or grantee to certify compliance with institutional codes of conduct. Most NIH grants, rather, require just basic compliance with basic terms and conditions that certify compliance with statutory and regulatory requirements for public expenditures. Imposing a new requirement would essentially elevate abstention from sexual harassment to a mandated regulatory or statutory term and/or condition of a federal grant despite the lack of a codified federal regulation.

3.       Third, the working group recommended that NIH make affirmative efforts to “recapture lost talent.” Similar to a restorative justice model that notably embraces reconciliation and holistic views over traditional models focused on deterrence – a model that has gained great popularity in criminal justice circles – the working group has recommended that NIH proactively reach out to sexual harassment survivors and encourage them to apply to programs to restart stalled careers. While outreach serves a remedial purpose, it also provides another important feedback channel for NIH to learn about the practical effects sexual harassment can have in the lab.

4.       Fourth, the working group recommended that NIH strongly consider developing new approaches to increase investigator independent and decrease institutional reliance on their mentors. As a functional matter, PIs have great financial and operational control over investigators in their lab. One way to create greater independence is to increase the availability of training awards awarded directly to individual trainees rather than institutions or mentors.   

Sexual harassment in 2018

The numbers tell the story. In 2018, NIH replaced at least 14 principal investigators from grants based on the return of guilty findings on allegations of sexual harassment, with the institution reporting remedial action – and in some case removal – against 21 PIs. Countless others have no doubt been accused or put on administrative leave (which is not yet deemed a reportable event to NIH – though it is to NSF.

How institutions can get ahead of NIH               

While the NIH working group’s final report is due out later this year, there are several actions that institutions can take now to address the concerns highlighted by the NIH working groups:

·         Develop robust systems, including regular communications with NIH.

·         Dedicate resources to educating faculty members on professional misconduct, including sexual harassment, and research misconduct

The working group has made clear that it does not intend to “brand for life” PIs accused of misconduct. However, the reality is that professional misconduct, including research misconduct, has career-long consequences and, if the individual is found guilty, becomes a matter of public record visible to the community at large.

For universities and other institutions who have not yet felt the wave of the #MeToo STEM movement, or revisited decade-old protocols to address reports of sexual harassment with equal vigor as those of traditional research misconduct, now is the time. Universities receiving federal funding would be prudent to follow NIH’s lead and become part of the solution.