5

Legal and Policy Mechanisms for Addressing Sexual Harassment

Across the past three decades, organizations have built up their anti–sexual harassment policies and reporting mechanisms—as required by law—and sexual harassment remains pervasive across many places of work (see the discussion in Chapter 2). This raises doubt about the effectiveness of these legally mandated mechanisms in eradicating sexual harassment.

Even though laws have been in place to protect women from sexual harassment in academic settings for more than 30 years, the prevalence of sexual harassment has changed little in that time. This chapter describes the legal framework for addressing sexual harassment, the implementation of the legal requirements by academic institutions, suggestions for improving them based on research, and how federal funding agencies and professional societies have addressed sexual harassment. We conclude that the legal system alone is not an adequate mechanism for reducing or eliminating sexual harassment. Adherence to legal requirements is necessary but not sufficient to drive the change needed to address sexual harassment. As such, academic institutions and federal agencies should treat the legal obligations for addressing sexual harassment under Title IX and Title VII law as a floor, not a ceiling, and work to move beyond basic legal compliance to promote sustainable, holistic, evidence-based policies and practices to address sexual harassment and promote a culture of civility and respect.

LEGAL AND POLICY HISTORY

The development of law and policies about sexual harassment in academic settings began in the 1970s, first with the passage of Title IX in 1972 (part of the Education Amendments of 1972), banning discrimination on the basis of sex

under any education program or activity receiving federal funds, and later with judicial interpretations of Title VII of the Civil Rights Act of 1964, prohibiting sex discrimination and construing harassment as part of discrimination. Title IX applies to academic institutions receiving federal assistance, including financial aid for students (such as student loans), and bars the discrimination (which includes harassment) of those seeking education (AAUP 2016; USED 2015). Title VII discrimination protections are based on employment status. Women in academic science, engineering, and medicine fields may be students, employees, or both at once.

Title IX protections in education developed before the term “sexual harassment” had been coined, but it grew out of activist mobilization from groups such as the National Organization for Women and congressional energy around the Equal Rights Amendment. The first legislative movement came under the direction of Representative Edith Green from Oregon, whose work on the Subcommittee on Higher Education produced evidence documenting widespread discrimination on the basis of sex in education (House of Representatives, n.d.). At the time, for example, women were simply not admitted as students to many colleges and universities (even public universities such as the University of Virginia), or were refused readmission after marriage (a 1966 policy at Georgetown University’s nursing school) (Rose 2018). As part of the effort, Senator Birch Bayh of Indiana took a provision of the stalled Equal Rights Amendment and introduced it as an amendment to the Higher Education Act of 1965 (HEA 1965, Pub. L. 89-329), later renamed the Patsy T. Mink Equal Opportunity in Education Act in honor of House coauthor Representative Patsy Mink of Hawai’i.

Title IX has become well known for its transformations of athletic opportunities for women and girls in educational settings, but its general principle is equal opportunity for men and women to seek and to complete their educations. Courts use interpretations of sex discrimination established under Title VII (the employment law) for Title IX, and so as sexual harassment law developed under Title VII, it applied under Title IX as well. Though the details of institutional obligations have been controversial and may shift under presidential administrations, it has been a legal principle for decades that allowing harassment on the basis of sex to close off access to educational opportunity for youth or adults violates Title IX.

The concept of sexual harassment grew out of the second-wave feminist movement of the 1970s, first coined as a term at Cornell University by Lin Farley and other scholars working on problems of women in the workplace (Epp 2010, 167; for additional extensive history, see Baker 2008; Cahill 2001; Saguy 2003). Activist mobilization against sexual harassment was energetic, composed of groups such as Working Women United, the Alliance Against Sexual Coercion, and campus organizing by students and faculty at Yale University and the University of Delaware (Epp 2010, 168). Popular media coverage of the issue in the mid-1970s included widely cited articles in the New York Times and Redbook, Ms., Ladies’ Home Journal, and Glamour magazines. By 1975, drafts

of Catharine MacKinnon’s (1979) treatise on sexual harassment (that would later form the basis of courts’ acceptance of the legal concept) had been circulated, and in 1978, Lin Farley published Sexual Shakedown: The Sexual Harassment of Women on the Job. The Alliance Against Sexual Coercion, formed in Boston by anti-rape activists, published a detailed handbook in 1979 defining sexual harassment, outlining outreach and staff training for those working to combat it, describing how to survey to find out its extent within an organization, and outlining legal options for responding to it (Corcion 1979).

Scholars and activists observed from the beginning that sexual harassment happened in educational settings. To address that issue, the handbook includes a survey form designed for high school students experiencing harassment from teachers (66). Another prominent book from 1978, Constance Backhouse and Leah Cohen’s treatise titled The Secret Oppression: Sexual Harassment of Working Women, opens with several interview transcripts from women describing sexual harassment experience, including a doctoral student describing being sexually pursued and kissed by her male faculty advisor against her will. Backhouse and Cohen observed that a graduate student’s situation “is much like that of all working women” because “the future of a graduate student can be contingent on the good will of her supervising professor.”

Feminist scholars shaped both the legal doctrine of sexual harassment as well as administrative plans for changing organizational cultures to combat it. Most significantly, they argued that sexual harassment amounted to illegal sex discrimination under Title VII of the 1964 Civil Rights Act (Farley 1978; MacKinnon 1979). Feminist scholars also put forth detailed organizational policy recommendations. Backhouse and Cohen (1978), Canadian feminists with careers in government and in business, published a management action plan in 1978 that recommended the core elements of organizational response widely used today, such as a strong policy statement from top leaders against sexual harassment; clear policy defining it and stating that it is unacceptable in the workplace; posting and publication throughout company manuals and publications; trainings; oversight procedures, including surveying employees; protecting targets from retaliation; and a complaint and disciplinary procedure for addressing complaints (1978, 185–193). By 1980 the Equal Employment Opportunity Commission (EEOC) issued guidelines supporting both MacKinnon’s legal remedy and Backhouse and Cohen’s recommended organizational responses, and courts and other federal agencies endorsed the guidelines (Epp 2010, 174).

Systematic surveys of personnel management journals show that by 2000, business professionals recommended the same model of “legalized accountability” created by scholars and the EEOC in 1980 (Epp 2010). The original EEOC guidelines emphasized prevention of sexual harassment, and by 1999, the EEOC cautioned that symbolic compliance with a policy would not be enough to shield employers from legal liability (Edelman 2016). Despite this guidance, courts and the EEOC defer to the compliance structure that organizations developed (i.e., a

complaint process within Human Resources), taking its presence as evidence that rights against harassment are in fact being protected (Edelman 2016). A historical understanding of sexual harassment law and policy development reveals that (1) many of the same legal and organizational problems that this report confronts have been identified and discussed for decades, though effective change has been more elusive; (2) women’s rights advocates and scholars have both produced and criticized sexual harassment law and policy since its inception, and continue to do so today; and (3) the overwhelming historical focus of sexual harassment law and policy development has been on harassment of a sexualized and coercive nature, not on the gender harassment type of sexual harassment that more recent research has identified as much more prevalent and at times equally harmful.

THE LEGAL REQUIREMENTS OF TITLE VII AND TITLE IX

This report does not attempt to describe all features of Title VII and Title IX in detail, but instead draws out what scholars know about how these laws are working from the legal and social science perspectives and derives lessons for combating sexual harassment in science, engineering, and medicine. It is also important to note that this report discusses research on all three forms of sexual harassment and is not limited by the legal definitions of prohibited conduct (or what would likely be found illegal in court), but rather encompasses conduct which organizational policies could address in order to prevent sexual harassment from rising to the level of illegal behavior. For example, one significant finding in this report is that the most common type of sexual harassment is gender harassment (sexist hostility and crude remarks, i.e., behaviors that are not sexual in nature), yet the Title IX publications remain focused on sexualized and coercive forms of sexual harassment, a narrower category.

Title VII of the 1964 Civil Rights Act and Title IX of the Education Amendments in effect work together to protect employees and students, respectively, from discrimination. Title VII focuses on protection of employees from discrimination based on an individual’s race, color, religion, sex (including sexual harassment by judicial interpretation and pregnancy by amendment), or national origin. As noted in Chapter 2, sexual harassment under Title VII comes in two varieties: quid pro quo harassment (conditioning some feature of a target’s job on sexual performance or submission) and hostile environment harassment (sex-based conduct that is sufficiently severe or pervasive from the perspective of a reasonable person to alter the terms or conditions of the target’s employment, and is perceived by them as such). All forms of sexually harassing behavior,¹ whether or not the conduct is sexual in nature (e.g., sexist hostility that is not sexual), can be illegal forms of harassment if they occur “because of sex” and

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¹ There are three types of sexual harassment: gender harassment, unwanted sexual attention, and sexual coercion. See Chapter 2 for further descriptions.

meet the bar for severity or pervasiveness. Title IX addresses sex discrimination in educational programs or activities at institutions receiving federal assistance (including financial aid, meaning that it applies to nearly all colleges and universities). Department of Education materials from 2008 define sexual harassment under Title IX as “conduct that is sexual in nature; is unwelcome; and denies or limits a student’s ability to participate in or benefit from a school’s education program” (USED 2008, 3).

Both Title VII and Title IX apply in academic settings, sites of both employment and education. Institutional compliance with both laws has taken the form of widespread adoption of policies and procedures to deal with sexual harassment complaints (as a form of sex discrimination) and to inform employees and students of these policies and procedures. Unlike Title VII (under which these policies are recommended and widely adopted but not required under the statute), Title IX specifically requires the designation of an employee to coordinate compliance, adoption, and publication of a grievance procedure, and widespread notification that it does not discriminate (34 C.F.R. § 106.8-9). The legal regime of sexual harassment therefore includes the major pieces of federal legislation (Title VII and Title IX), but also their judicial interpretations as developed through case law; regulations, guidelines, and letters from each administrative agency in charge of implementing the statutes; and the internal claims filing and resolution processes in place within organizations.

While definitions of sexual harassment are similar under the two laws, Title IX and Title VII have different approaches to institutional liability for sexual harassment. Under Title IX, an educational institution must have been “deliberately indifferent” in the face of actual knowledge of the harassment. By contrast, Title VII’s initial standard of liability for employers is much stronger, but is tempered by a generous affirmative defense against hostile environment claims. In 1998, two Supreme Court cases, Burlington Industries, Inc. v. Ellerth² and Faragher v. City of Boca Raton,³ clarified the nature of legal liability in Title VII sexual harassment cases. An employer is vicariously (or automatically) liable for a supervisor’s sexual harassment if the harassed employee suffered a tangible harm such as a demotion, firing, failure to promote, or, in the academic context, such harms as exclusion from a research site or lab; restrictions from using data; or withdrawal of promised fellowship support (examples of outcomes of quid pro quo harassment). Strict liability means that a court need only find that the harassment occurred with a tangible harm to the harassed person’s working conditions (i.e., there is no separate investigation into whether the employing college or university was negligent). Employers are liable for a hostile work environment resulting from sexual harassment only if they were negligent, however—that is, if they knew or should have known about the harassment and failed to stop it. The

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²Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

³Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Ellerth and Faragher cases provided a two-pronged affirmative defense for organizations accused of negligently allowing the hostile work environment variety of sexual harassment to go on: if (1) the organization exercised reasonable care to prevent and correct workplace harassment (by having a written policy, trainings, and a grievance procedure) and (2) the harassed employee failed to take advantage of those mechanisms, the employer can limit or avoid liability (EEOC 2010). Organizations had already begun to adopt these personnel practices in the 1970s and 1980s, and by the time of these rulings in 1998, anti-harassment policies and grievance procedures were already widely used (Dobbin 2009; Edelman 2016).

The Department of Education’s Office for Civil Rights (OCR) is the federal office charged with upholding Title IX. According to OCR, an institution’s sexual harassment grievance procedures must be “prompt and equitable.” An adequate policy must include the following:

• Give notice to students, faculty, and staff of the procedure and where complaints may be filed;
• Supply information about how procedures will be carried out when the sexual harassment involves employees, other students, or third parties;
• Provide an adequate, reliable, and impartial investigation of the complaint, with the opportunity to present witnesses and other evidence;
• Plan a response within a reasonable amount of time, give notice to all parties about the outcome of the complaint; and
• Take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate (USED 2001).

This 2001 Revised Sexual Harassment Guidance document remains in place even as the current administration has withdrawn the Obama administration’s 2011 Dear Colleague Letter and 2014 Questions and Answers on Title IX and Sexual Violence document (USED 2017).

Legal scholars and scholars of organizations have been very critical of the incentives and assumptions supported under the legal response to sexual harassment. The incentive is to avoid liability by creating policies and procedures, and the assumption is that targets will quickly and vigorously use them. Calling these rulings “the triumph of form over substance in sexual harassment law,” Joanna Grossman (2003, 4) observes that “rules are developed and incentives are created with little or no attention paid to whether these legally mandated employer interventions are likely to prevent harassment or adequately redress the harm it creates when prevention fails.” Noting that following the Ellerth ruling, Justice Anthony Kennedy summarized the purpose of Title VII as “encourag[ing] the creation of antiharassment policies and effective grievance mechanisms”⁴ rather

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⁴ See Digest of EEO Law, Volume XI, No. 6: https://www1.eeoc.gov//federal/digest/xi-6-2.cfm?renderforprint=1.

than actually combatting sex-based harassment, Grossman argues that Justice Kennedy was “signaling a victory for a misguided culture of compliance, one in which liability is measured not by whether employers successfully prevent harassment . . . [and in which] employers could conceivably insulate themselves from liability entirely without making a dent in the underlying problem” (3).

A 2004 analysis by Anne Lawton (2004) of 200 legal cases based on the Faragher and Ellerth legal defenses showed that the courts in practice require employers to show only “file cabinet compliance” (i.e., the existence of policies and procedures on paper) before shifting the burden to the harassed employee to prove any retaliation or fears of retaliation or to justify why she delayed in reporting the harassment. Lawton cites much of the same research relied upon here to show that it is actually quite unusual for harassed employees to report misconduct and to behave in the way courts seem to expect, especially when retaliation for reporting is common. Lauren Edelman’s (2016) theory of legal endogeneity, developed through extensive empirical study of legal requirements, lawsuits, and organizational adaptations to law, posits that “organizations respond to ambiguous law by creating a variety of policies and programs designed to symbolize attention to law,” which spread, and then “employers and employees alike tend to equate the presence of these structures with legal compliance and become less aware of whether the structures actually promote legal ideals.” Edelman’s (2016) own data show that judicial deference to symbolic civil rights policies has become widespread and has increased over time, a watering down of discrimination laws that Tristin Green (2016) calls “discrimination laundering.” These liability standards in both the Title IX and Title VII context coupled with the organizational response can help explain the empirical trends documented in this report: policies against sexual harassment are widely in place and have been for many years, but nonetheless sexual harassment in academia continues to exist and has not decreased

THE IMPLEMENTATION OF THE LEGAL REQUIREMENTS IN ACADEMIA

An important accompanying feature of the antidiscrimination regulatory requirements (alongside many others applied to the contemporary academic setting) is the growth of the college or university as not only an actor in the legal system but also as its own “entire private legal system” (Edelman and Suchman 1999). Scholars of law and organizations have observed that in recent decades, large bureaucratic organizations such as colleges and universities are quasi governments unto themselves; that is, a college or university typically operates its own police or security force; runs internal grievance and dispute resolution procedures; dispenses punishments and sanctions; manages public relations and information services; and employs in-house counsel staffs as well as administrators to oversee this legal order. The college or university is likely also the health care and psy-

chological support services provider for students and perhaps even employees. Since very few disputes end up in the courts (Siegelman and Donohue 1990), these academic legal orders will handle the vast majority of problems internally.

Therefore, there are many legally significant features of these academic environments that extend far beyond sexual harassment law but which have significant implications for addressing harassment, particularly for promoting transparency about how harassment claims are handled. Transparency about outcomes may be legally required, permitted, or prohibited depending on the type of conduct (harassment that is also criminal versus noncriminal harassment), the status of the parties (students or employees), and the type of information (an outcome of an adjudication, a complaint, a personnel document, or a police report) (Koebel 2016). For example, private academic institutions are able to shield their personnel decisions, adjudication outcomes, and financial matters from public scrutiny, but state public records laws (variable, but modeled after the federal Freedom of Information Act) apply to public state colleges and universities. Additionally, the Higher Education Act of 1965 compels consumer-based disclosures by institutions that receive federal funds (information about admissions, graduation rates, costs, financial aid, student services, and so on). The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (known as the Clery Act) also applies to all institutions receiving federal funds and requires them to report crimes near or on campus, including sexual assaults. So while the Clery Act requires all institutions to report a crime, state open records laws may require only public institutions to disclose full campus police incident reports, for example. The Family Educational Rights and Privacy Act of 1974 protects the privacy of student records, including disciplinary actions, though after a finding against a perpetrator of a sex offense, the results of that proceeding may be disclosed (USED 2007). Under the Health Insurance Portability and Accountability Act, the Family and Medical Leave Act, and the Americans with Disabilities Act, academic employers are subject to privacy laws governing medical information and information on employees’ disabilities and accommodations, and may also be subject to state law prohibitions on releasing information from a personnel file (such as past sexual harassment accusations). Academic employers may also be sued for invasion of privacy tort claims if they release embarrassing information about someone, and colleagues may hesitate to warn about sexual harassment concerns in the hiring or promotion context out of fear of being sued for defamation. Confidentiality agreements in settlements will also shield harassment cases from view and make it possible for perpetrators to seek new jobs and keep problems secret (Cantalupo and Kidder 2017).

The mandatory arbitration clauses that are standard in many employment contracts also bar women from taking sexual harassment claims to federal courts, handing them over to a quicker and less expensive arbitration system that shields the case from scrutiny and results in smaller awards (Gough 2014; Colvin and Gough 2015). A 2014 study of 700 employment discrimination cases found

“starkly inferior” outcomes for employees in arbitration as compared with employees who took their cases to court (Gough 2014). The use of such mandatory arbitration clauses in nonunion employment contracts has increased over the past 20 years since the Supreme Court affirmed their validity, but the extent of their reach into the academic workplace with its unique tenure system (at least for tenured and tenure-track faculty) is unclear. The impact of binding arbitration clauses in the academy is not well studied, but any contract between an academic institution and its students or employees could currently require it. Adjunct and temporary faculty who are not unionized would be the most likely to work under contracts that remove access to federal courts through arbitration clauses. Even if these claims were not barred by arbitration clauses from reaching federal courts, it is still the case that judicial interpretations of Title VII have been the primary reason that law is such a weak weapon against sexual harassment (emphasizing existences of policies and trainings over their actual effectiveness when it is well documented that these are typically not effective). Moreover, most forms of sexist hostility and derogation that research has found to be damaging to women in science, engineering, and medicine would not meet the high bar for illegal harassment. Greater ease of access to the federal courts for sexual harassment claimants would certainly benefit some women and could shift incentives toward prevention by removing one liability risk management strategy, however.

Thus, while academic institutions combat sexual harassment in science, engineering, and medicine, they must also attend to an array of competing and sometimes contradictory obligations that may hamper the transparency and effectiveness of their efforts. Perhaps more importantly, institutions gain protection from liability by adopting standard practices that perpetuate ineffective policies and shield patterns, claims, perpetrators, and outcomes from scrutiny. The legal mechanisms in place to protect women from sexual harassment, and to address sexual harassment once it has occurred, have significant limitations. Any serious attempt to address sexual harassment through the law, through institutional policies or procedures, or through cultural change should at a minimum take into account the social science research demonstrating that targets of sexual harassment are unlikely to report and that there are more promising practices to enforce policies on sexual harassment.

Perhaps the most distinct feature of the academy as a workplace is the tenure system. The default legal status for an employee generally in the United States is that she works as an “at will” employee; that is, she can be fired or quit at any time. Union contracts or additional employment contracts add protections for workers above the at-will baseline. Tenure, by contrast, is a guarantee for a professor that after a period of probationary evaluation and review, she will be protected from being fired except for extraordinary reasons, such as financial exigency or program discontinuation (AAUP 2016). Tenure protects the academic freedom of the professoriate, ensuring that researchers and teachers can promote knowledge and discovery without fear that those who dislike their conclusions

can oust them from the academy or stop their work. Tenure does not necessarily protect professors who are found to be sexual harassers from termination; however, termination of a tenured faculty member is a long and difficult process. Cantalupo and Kidder (2017) assess 26 examples of lawsuits filed by professors with tenure who were terminated because of their sexual harassment of their graduate students, and find that institutions prevailed in 20 of the 26 cases.

Only 21 percent of the academic labor force is composed of tenured faculty, however (AAUP 2016). Most are contingent faculty, including adjunct professors, who are hired to teach specific courses (with contracts renewed term to term), and graduate students and postdoctoral fellows, who also work as teachers. In addition, medical students and residents provide care in clinical settings, and undergraduates also work in labs and for professors on their research projects. The academic workplace and learning settings are therefore extremely unequal based on employment security status: some faculty cannot be fired or only with extraordinary difficulty, others who work with them are on the track to achieve such status but have not yet (and will be reviewed by their tenured colleagues), others who teach or do research in the same settings can be easily fired or not renewed, and others are moving through the institution as students in some capacity and must gain a credential, never planning to remain as long-term employees. Tenured faculty members are hired and reviewed by the college or university under extensive faculty governance procedures, but other academic employees such as lab assistants are likely to be hired by one faculty member on a project-driven basis and to be paid entirely through funds secured by that faculty mentor. Because of these inequities, people working, teaching, and learning together in science, engineering, and medicine will have very different perspectives about the safety of reporting sexual harassment and about other factors, such as investing time in a formal reporting process.

Title IX is best known for its significant social impacts in expanding women’s opportunities in sport, including in academia. Any academic institution that receives federal support must comply with Title IX. In practice, this means that almost all academic institutions must implement the requirements of this law, which has only relatively recently been visible as the primary way to respond to sexual assaults and sexual harassment on campus. Colleges and universities have been under pressure to establish policies and procedures governing the prevention of and response to sexual harassment, but just as under Title VII, it is much more difficult to ensure that such policies and procedures are effective or user-friendly. Moreover, research has demonstrated that compliance with Title IX requirements is inconsistent, with many schools failing to meet even the low bar set by the legal requirements.

One study, which examined the websites of 496 U.S. colleges and universities (including public, private, and for-profit institutions), found that 67 percent of for-profit colleges and universities were noncompliant with Title IX because they did not have a publicly posted policy. The researchers investigated four aspects

of institutional policies: whether each of the institutions had a policy posted, whether the policy included guidance on how to report sexual harassment (both formally and informally), whether multiple complaint avenues were in place, and whether prevention training was available. The study found that of the institutions that had a public policy, 70 percent were deficient in at least one of the aspects reviewed (Fusilier and Penrod 2015).

Brian Pappas, himself a former Title IX coordinator, has published two papers based on review of 1,200 documents and interviews with 14 ombuds and 13 Title IX coordinators from 22 large universities (Pappas 2016a, 2016b). In these papers, he describes the full legal and professional obligations of the nation’s 25,000 Title IX compliance employees, who are subject to requirements under Title IX, Title VII, the 2013 reauthorization of the Violence Against Women Act (also known as the Campus SAVE Act), the Clery Act, the Family Educational Rights and Privacy Act, the due process guarantees of the Constitution, and administrative law. Another resource on the role and responsibilities of Title IX coordinators is available from the Association for Student Conduct Administration, a nationwide higher-education organization whose membership includes Title IX administrators. The association has published models for use in handling sexual misconduct cases involving students, drawing on a hearing model, an investigation model, or a hybrid of both (Association for Title IX Administrators 2012).

Based on his interviews with the 13 Title IX coordinators between 2011 and 2014, Pappas (2016b, 163) concludes that compliance with Title IX was “inconsistent at best,” with Title IX coordinators departing from accepted procedures “to address the needs of survivors or alleged perpetrators, out of frustration with the inefficiencies of excessive formalism, and to address the organization’s interest in resolving disputes and avoiding liability.” The study reported that Title IX coordinators often do not follow the guidelines in the framework because they view them as overly formalistic. Further, Title IX coordinators reported working to avoid negative publicity by developing “managerial solutions that [merely] symbolize compliance” (2016b, 121). Overall, the picture of college and university Title IX compliance is one motivated more by “symbolic enforcement than true dedication to ensure a hostility-free campus” (2016b, 121).

To address these concerns, several institutions have taken a close look at their policies and revised them with the intention of improving responsiveness and providing more options for recourse. For instance, in the wake of a series of high-profile sexual harassment cases where those in leadership positions did not follow up on reports of sexual harassment, the University of California system has now specified that all members of the Title IX team have clearly identified roles and responsibilities in managing all processes related to cases of sexual harassment. In addition, a time line that ensures that all investigations are completed within 60 business days must be in place, and a decision or disciplinary action must be determined within 40 days after the end of the investigation. Any recommended disciplinary action must be reviewed and approved by a chancellor or chancellor-

designee. After decisions have been made, all complainants and respondents will be informed of any outcomes.⁵

In another example, Yale University, which also dealt with a series of high-profile sexual harassment cases, took steps to improve its processes and promote transparency. Yale has established a body, known as the University-Wide Committee on Sexual Misconduct, tasked with handling all formal and informal complaints dealing with sexual misconduct. Like the University of California system, Yale has established time limits for resolving complaints and has made it clear that it will recommend sanctions if appropriate. Yale has also established a center called the Sexual Harassment and Assault Resources & Education Center,⁶ where students can go to receive information and counseling, and a confidential phone hotline called “Walden,”⁷ where students can report incidents anonymously. The university also publishes the semiannual Report of Complaints of Sexual Misconduct and an annual campus safety report (which includes sexual harassment) to inform the campus community about complaints brought to the university’s attention and how they were resolved.⁸ These reports are written to protect anonymity while also providing minimal descriptions and statistical summaries that reveal (1) the complainants and respondents role in the university (i.e., undergraduate student, graduate and professional student, postdoc, faculty, staff) and (2) the status of the complaint (if the complainant decided to pursue a formal complaint, if investigation is pending, any action taken by the university after investigation, etc.).⁹ Finally, by bolstering the role of the Title IX office and clarifying how it works with the University-Wide Committee on Sexual Misconduct, the university is striving to provide more services for students (Marshall et al. 2011).¹⁰

Although it is laudable that Yale and the University of California system are taking steps to try to improve procedures and transparency, given that these changes are new, and that sexual harassment policies and procedures have rarely been evaluated at any institution, it is difficult to predict whether these models will be more successful in improving responsiveness to reports or to demonstrating to the university community that the institution takes these issues seriously. Yale and the University of California system could make a significant contribution to our understanding of effective institutional policies and practices if they conducted evaluations of these new models and made use of periodic, anonymous, campus climate surveys to study the rate of sexual harassment at their institutions.

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⁵ See https://www.chronicle.com/blogs/ticker/u-of-california-system-changes-policies-for-responding-to-sexual-harassment-and-violence/119173.

⁶ See https://sharecenter.yale.edu/.

⁷ See https://walden.sites.yale.edu/.

⁸ Yale University Annual Safety Report on Campus Crime and Fire Incidents: https://provost.yale.edu/sites/default/files/files/August-2016-Report.pdf.

⁹ See https://provost.yale.edu/sites/default/files/files/August-2016-Report.pdf.

¹⁰ See https://provost.yale.edu/sites/default/files/files/Guide_Preventing%20and%20Responding%20to%20Sexual%20Misconduct.pdf.

Reporting Policies and Procedures

Another major weakness of the legal framework for sexual harassment is the expectation it sets for how targets of sexual harassment should behave for their complaints to be deemed credible and for them to be protected from retaliation. The presumption in the law that a target of sexual harassment will not be deterred by possible retaliation and will report the harassment in a timely manner is not evidence based. As described in Chapter 4, it is uncommon for women to formally report sexual harassment, and part of this is because when they do report they experience minimization or normalization of the experience, inaction by those in positions of authority, and/or retaliation.

Narrow judicial interpretations of retaliation clauses have weakened protections for those who report sexual harassment. Retaliating against someone for making a complaint of a rights violation is explicitly prohibited under Title VII and, though it is not mentioned in the text of Title IX, courts and regulations have affirmed that retaliation against someone for bringing a sex-based Title IX claim is also illegal (Brake 2005, 43). Under the reasonable belief doctrine, however, a plaintiff claiming retaliation after informally making her complaint must prove that she had a reasonable belief that the conduct violated the law in order to be able to invoke the retaliation clause later (Brake 2005, 79).

As law professor Deborah Brake explains, the reasonable belief doctrine makes retaliation protections difficult to use in practice because harassed employees often raise concerns informally and may not know or have a belief about the legal status of the conduct. For instance, the Supreme Court held that a woman who was given less desirable duties and removed from a supervisory position after complaining about derogatory sexual banter in a meeting (“I hear making love to you is like making love to the Grand Canyon”) could not avail herself of the retaliation protection because this single incident would not meet the legal bar for a hostile work environment, and thus it was not reasonable for her to believe the conduct violated Title VII (Clark County School District v. Breeden 2001¹¹). Thus, legal protections against retaliation do not extend to those informally raising concerns about harassing conduct that is less than the legal standard for severity or pervasiveness, even though academic institutions may want to encourage more open discussion about these aspects of organizational culture, because they are still damaging to women in science, engineering, and medicine careers.

The inaccurate assumption that targets will report is not unique to the issues of sexual harassment; rather, it is well known in the legal research that the vast majority of individuals who believe that they have been wronged do not mobilize their legal rights. Empirical studies of civil litigation suggest that only about 20 percent of individuals who feel that they have been wronged will pursue any type of action and only about 5 percent of perceived legal wrongs actually reach trial (Miller and Sarat 1980). Miller and Sarat (1980) call this the “dispute pyramid”

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¹¹Clark County School District v. Breeden, 532 U.S. 268, 270 (2001).

to emphasize that the vast majority of “perceived injurious experiences” do not result in rights mobilization. Research has shown that there are numerous social, psychological, and cultural obstacles that explain why most people do not mobilize their legal rights (Felstiner, Abel, and Sarat 1980; Bumiller 1987; Bumiller 1992; Albiston 2005; Engel 2016).

For these reasons, institutions should consider the research on the harmful effects of reporting on targets when they consider whether and how to adopt mandatory reporting policies, also known as “compelled disclosure policies.” Under such policies, any faculty member or college/university employee designated as a “responsible employee” who learns of sexual harassment on campus must report the incident to the Title IX office, even in cases where the target specifically requests that the information remain confidential.

In a recent study of a random sample of 150 college and university policies shows that most colleges and universities require campus employees to report student disclosures about sexual assault. The study found that a major rationale for mandatory reporting policies was that it would bring more incidents to the attention of college and university officials and promote the adjudication of a greater number of cases. Further, mandatory reporting policies allow colleges and universities to hold employees responsible who do not report incidents that have been disclosed to them, which some believe will compel administrators (e.g., department chairs, deans, etc.) to take allegations in their departments and colleges more seriously (Holland et al. 2018).

On the other hand, the study goes on to report conflicting evidence on the value of mandatory disclosure, including evidence that mandatory reporting may have a negative impact on targets, employees, and institutions. Of particular concern is the question of whether mandatory reporting is harmful because it takes control away from targets, in essence, revictimizing them. The RTI International study¹² found that outcomes from university-level reporting were diverse and sometimes complex. Many women who had pursued this route expressed dissatisfaction and frustration with how long it took, what was required of them, the treatment they received from those to whom they reported, their perceived lack of agency and confidentiality, and the outcomes for themselves and their harassers. One woman from the focus group (see Appendix C of this report) noted:

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¹² This research was commissioned by the committee and the full report on this research is available in Appendix C.

Indeed, some studies have shown that when control is taken away, targets report increased posttraumatic stress, depression, and anxiety (Orchowski, Untied, and Gidycz 2013; Peter-Hagene and Ullman 2014). One survey of college students found that only 12 percent had reported their harassment, and they gave a range of reasons to explain why not (Weiss and Lasky 2017). Fifty-six percent said that they did not see the incident as serious enough (“it was no big deal”), 7 percent did not think reporting it would help, another 7 percent were afraid of retaliation, 2 percent did not want to get the aggressor in trouble, and 22 percent did not want to bring negative attention to themselves. This research concludes with the recommendation that institutions pursue innovative, target-centered policies and practices, developed with input from targets as well as experts in sexual violence and mental health; those policies and practices should then be evaluated for their efficacy (Holland, Cortina, and Freyd 2018).

This movement toward mandatory reporting is attributed to the 2011 guidance from the OCR. In 2011 the OCR issued a “Dear Colleague Letter” with “significant guidance” for colleges and universities for complying with Title IX (USED 2017). In the question-and-answer portion of this document, the OCR defined a responsible employee as any employee who has

Many institutions have interpreted the requirements of the OCR “Dear Colleague Letter” to include mandatory reporting of student sexual harassment disclosures to college and university officials (usually the Title IX coordinator) by most—and sometimes all—employees.

In 2017, Candice Jackson was appointed the new head of the OCR and decided to repeal the previous OCR guidance (specifically, the 2011 Dear Colleague Letter and the 2014 Questions and Answers document) (Chronicle of Higher Education 2017). As a result the OCR’s 2001 guidance on sexual harassment¹³ is currently in effect. The 2001 guidance maintains the requirement for mandatory reporters by requiring institutions to designate “Responsible Employees,” who are supposed to give the school notice of a report of sexual harassment when they learn about it.

Consensual Relationship Policies and Sexual Harassment Policies

A sexual relationship welcomed by both parties by definition cannot be categorized as harassment to them. That is, to those in the relationship, the behavior does not meet definitions of harassment as established by social science and law.

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¹³ See https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.

In a study by Jennifer Berdahl (2007b, 644), the term sexual harassment is reserved for “behavior that derogates, demeans, or humiliates an individual based on that individual’s sex.”

However, there are circumstances in which the two parties’ agreement to a relationship is not consensual, even while appearing to be consensual from the outside. In these situations, powerful individuals might lure subordinates, or even a succession of subordinates, into relationships that are not truly consensual because they are the result of pressure from one party that leads the other party to reluctantly consent to the relationship. Such relationships are exploitative and, in fact, constitute sexual harassment because they are unwanted and are the result of coercion. Additionally, such coerced relationships are likely to contribute to ambient harassment for others in the environment (e.g., within the campus department, or within the campus organization) when others are aware of the indirect or direct pressure that was used to establish the relationship. These pressured relationships are very difficult to identify for those observing the relationship from the outside, and thus leaders should consider requiring disclosure of relationships in any instance in which one has authority or power over the other. Such disclosure might assist in identifying individuals in a position of power who are serially pursuing students, faculty, or staff who are subordinate to them.

One way to prevent sexually exploitive situations is for leaders to be explicit and to remind colleagues and students regularly, and formally, that unwanted and coercive behavior is not permitted, and that consensual relationships where there is a clear power differential are discouraged. As the research on the antecedents to sexual harassment show, perceptions that an organization takes these issues seriously are correlated with lower rates of sexual harassment (Fitzgerald et al. 1997; Williams et al. 1999; Glomb et al. 1997). As such, these reminders may reassure targets of the unwanted attention and coercion that they can report it, and it will be taken seriously rather than feeling like there is no way out but to give in.

Even if parties to a relationship feel in no way coerced, consensual relationships with formal power differentials can become sexually harassing when they create a hostile environment for others in the context (e.g., within the campus department, or within the campus organization). That is, the law considers a consensual relationship as sexual harassment when it (1) results in favoritism based on sexual favors given and (2) becomes so widespread that women as a group are demeaned (Grossman 2005). The California Supreme Court explained it in this way: “when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or management.” Legal scholar Joanna Grossman (2005) added that “it is only an office romance (or, perhaps, two or three) combined with repeated and widespread instances of favoritism, to the detriment of other employees, that begins to near the threshold

for sex discrimination liability.” Thus, it is important for institutional leaders to pay attention to sexual favoritism and its effect on others in the environment, especially students.

In efforts to both improve workplace and educational climate and respond to legal and public pressure around sexual misconduct, colleges and universities have recently adopted several approaches to employee-student and employee-employee sexual relationships, either banning relationships in some or all cases, discouraging those relationships, requiring disclosure, or opting not to attempt to regulate those relationships at all.¹⁴ The impacts of this range of policy options are not yet known and need to be studied.

Consensual sexual relationships in cases of significant power differential may be important harbingers of a harmful organizational culture. On the other hand, policies regulating them may be a distraction from real problems of gender equality. The goal is to promote women’s advancements in science, engineering, and medicine by eliminating harassment, but Yale Law School professor Vicki Schultz contends that bans on all consensual relationships in an organization “may even undercut the goal of achieving gender equality” (2003). Suppressing sexuality in the workplace serves managerial interests in efficiency, but it does not necessarily serve gender equality, which is not the same as the absence of all sexuality at work. According to Schultz, “companies can feel good about punishing individual employees for sexual offenses while doing little or nothing to address the overarching dynamics of harassment and discrimination that preserve gender hierarchy at work” (2067). Schultz’s research on sexual harassment cases reveals that many of the cases are not really about sex, but rather about “labeling women as different and inferior, and for claiming favored jobs and positions of authority as preserves of men who embody an idealized masculinity” (2087).

Unfortunately, research is quite limited on the connections between consensual relationships and sexual harassment. It is not clear, for example, whether these connections are strong or common enough to merit their own policies. We believe developing answers to the following research questions could be helpful here:

• By what criteria are sexual relationships judged to be truly consensual? How frequently (or rarely) do consensual relationships evolve into coercive and unwanted relationships?
• Are some types of consensual sexual relationships, such as same-sex relationships, more likely to be noted with disapproval or more readily treated as problematic, regardless of how the people in the relationship describe their experience, because of bias against those types of relationships?
• How do employees and students perceive the favoritism that may or may not be conferred to a person of lesser power who is involved in the

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¹⁴ See http://counsel.cua.edu/fedlaw/nacuanoteamorousrelationships.cfm [January 2018].

Sexual Harassment Training Policies

Another institutional practice that has been limited by a compliance-based approach is training of employees on sexual harassment. The affirmative defense created in 1998 by the U.S. Supreme Court in Ellerth¹⁵ and Faragher¹⁶ reduces liability when employers can demonstrate that they have “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” (Faragher). Although not explicitly called for, educating employees via sexual harassment training rapidly became instituted as a central component of demonstrating such reasonable care, working on the assumption that such educational efforts lead to the prevention of sexual harassment (Bisom-Rapp 2001). However, according to recent research, the assumption that such training prevents sexual harassment has yet to be demonstrated (Magley et al. 2013; Tippett 2017). Further, courts have relied on the mere existence of such preventative efforts rather than on their effectiveness by neither reviewing the content of the training programs nor asking employers to evaluate their validity (Grossman 2003; Tippett 2017). As such, sexual harassment training programs should be understood to be just symbolic evidence of legal compliance with the 1998 Supreme Court decisions (Edelman 2016).

Unfortunately, fears of legal liability often prevent institutions from being willing to effectively evaluate training for its measurable impact on reducing harassment. As long as legal incentives are not in place and academic institutions are not held responsible for demonstrating that their prevention efforts are effective, trainings will likely go unevaluated, especially because a training that is found to be ineffective could expose the institution to legal liability. To ensure that sexual harassment trainings are effective, judicial interpretation of what is sufficient to meet the reasonable care requirement will have to change or academic institutions will have to be willing to risk liability and allow evaluators to study the impact of the trainings they have in place and then devote significant resources to improving them if they are found to be ineffective or, worse, have a negative effect. Academic institutions will have to take leadership and agency and move beyond what is required of them by law, to consider what is best for their students and employees.

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¹⁵Ellerth, 524 U.S. 742.

¹⁶Faragher, 524 U.S. 775.

THE IMPLEMENTATION OF THE LEGAL REQUIREMENT BY FEDERAL FUNDING AGENCIES

Recent high-profile cases of sexual harassment in science, engineering, and medicine have involved perpetrators who hold large grants from federal scientific and medical research funding agencies.^17,18,¹⁹ This has led many to question the degree of responsibility that federal agencies should take to ensure that tax dollars are not supporting sexual harassers.

In response to recent high-profile cases of sexual harassment perpetrated by federally funded researchers, the National Science Foundation (NSF), the National Institutes of Health (NIH), and the National Aeronautics and Space Administration (NASA) issued statements reemphasizing a “no-tolerance” stance on sexual harassment. For example, NSF released the following statement in 2016:

While it is clear that federal funding agencies are concerned about sexual harassment in science, engineering, and medicine, it is not yet apparent whether and how these statements will translate into meaningful action. In general, federal agencies rely on the grantee institutions to investigate and follow through on Title IX violations, but given how little is known about the effectiveness and fairness of campus policies and procedures, this approach may have little real impact on addressing sexual harassment on campuses and in science, engineering, and medicine. To truly address the issue of sexual harassment, it may be necessary for federal agencies to demand that grantee institutions go beyond the requirements of Title IX. By not assessing and addressing the role of institutions and professional organizations in enabling individual sexual harassers, federal agencies may be perpetuating the problem of sexual harassment.

U.S. federal funding agencies could demonstrate that they take the issue of sexual harassment very seriously and hold individuals and/or institutions ac-

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¹⁷ See https://www.buzzfeed.com/azeenghorayshi/famous-astronomer-allegedly-sexually-harassed-students? [January 2018].

¹⁸ See https://www.buzzfeed.com/azeenghorayshi/christian-ott-has-resigned? [January 2018].

¹⁹ See https://www.theatlantic.com/science/archive/2017/10/sexual-harassment-fieldwork-science/542559/ [January 2018].

countable by requiring academic institutions to report when someone on a grant has violated sexual harassment policy. To this end, Representative Jackie Speier has proposed legislation that would require academic institutions to report to federal research funding agencies when grantees have been found to violate the institution’s sexual harassment policy, allowing a federal agency to take this into consideration when awarding grants.²⁰ Recently, NSF proposed new award requirements requiring organizations not only to report findings of sexual harassment, or any other kind of harassment regarding a principal investigator (PI) or co-PI or any other grant personnel to NSF, but also to report the placement of the PI or co-PI on administrative leave relating to a harassment finding or investigation. NSF proposes to use this information to potentially “take unilateral action as necessary to protect the safety of all grant personnel. The action taken may include suspending or terminating an award or requiring the awardee to replace or remove personnel” (NSF 2018). NSF is the first federal funding agency to propose a change to its reporting requirements, and how this new policy will be implemented is currently unclear; however, they may serve as a model for other funding agencies moving forward.

Regardless of how federal agencies move forward on this issue, we observed that it is difficult to find information about how agencies deal with sexual harassment cases today through the agencies’ websites. It would be beneficial for federal agencies to make this information more easily accessible to the public and their grantees. Brief descriptions of the processes in place at NASA, NSF, and NIH are provided in Box 5-1.

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²⁰ See H.R. 6161 (114th): Federal Funding Accountability for Sexual Harassers Act.

SEXUAL HARASSMENT AND POLICIES ON RESEARCH MISCONDUCT AND RESEARCH INTEGRITY

NSF currently defines research misconduct as “fabrication, falsification, or plagiarism (FFP) in proposing or performing research, reviewing research proposals, or in reporting research funded” (45 C.F.R. 689.1.a). However, in the 1980s, when both NSF and the Public Health Service were developing definitions of research misconduct, they initially used language that allowed for allegations related to sexual misconduct. These definitions included both FFP and phrases that related to “other serious deviations” from accepted practices (Price 1994). Using this definition, NSF prosecuted a case in 1989 involving serious sexual harassment, sexual coercion, and rape of female students at a remote field site and in the perpetrator’s office and car. Students were blackmailed by the professor by the withholding of their research data and resources (NSF 2002). NSF defended the use of the deviations phrase in the definition of misconduct and its use in the sexual harassment case (Buzzelli 1993) to make sure that behavior that affected research practice, including the appropriate training and mentoring of students, protection of intellectual property, and preventing hostile research environments, was covered. During this time the definition of misconduct promulgated by the Public Health Service was coming under attack because researchers worried that the “other serious deviations” phrase might be used to limit novel approaches to science (Schachman 1993).

In its 1992 report on integrity in the research process, the National Academy of Sciences (NAS) recommended removing the “other serious deviations” language and stated that the definition of research misconduct needed to be very

specific (NAS 1992). In that report, the NAS defined research misconduct as fabrication, falsification, and plagiarism, and said “sexual harassment and financial mismanagement are illegal behaviors regardless of whether scientists are involved, but these actions are different from misconduct in science because they do not compromise, in a direct manner, the integrity of the research process” (26). Further, the NAS recommended that such behaviors, which affect the integrity of research, were covered by law or other policy and should be dealt with by those jurisdictions. The NAS definition of research misconduct was incorporated into a definition of research misconduct released by the Office of Science and Technology Policy (OSTP 2000) that was subsequently adopted by the federal government and most government-funded institutions. Misconduct thus became focused almost solely on fabrication, falsification, and plagiarism. The recent NAS report Fostering Integrity in Research (NAS 2017) reiterated that the formal definition of research misconduct is designed to apply only to those issues unique to the scientific process, upheld the current definition of research misconduct, and clearly states that sexual harassment is not included. That report instead categorizes sexual harassment as “Other Misconduct” that affects the integrity of research but is “not unique to the conduct of research, even when they occur in a research environment” (75). Additional items in this category include “the misuse of funds; gross negligence by persons in their professional activities, vandalism, including tampering with research experiments or instrumentation; and violations of government research regulations, such as those dealing with radioactive materials, recombinant DNA research, and the use of human or animal subjects” (75).

While sexual harassment is included as an issue that affects the integrity of research, some believe that not calling it research misconduct specifically may make it seem that it does not affect the integrity of research. In her paper discussing the legal challenges of sexual harassment for women in science, Ellen Sekreta (2006) said

Other members of the scientific community argue that sexual harassment is directly affecting the integrity of scientific work and thus should be defined as research misconduct.²¹ They also call for processes and resources to be put into place that would more effectively investigate sexual harassment and prevent

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²¹ See http://www.sciencemag.org/news/2017/09/scientific-society-defines-sexual-harassment-scientific-misconduct; https://newrepublic.com/article/146733/scientists-accused-sexual-misconduct-can-still-get-government-grants; https://www.scientificamerican.com/article/science-suffers-from-harassment/; and https://www.chemistryworld.com/news/ustoo-movement-targets-sexual-harassment-in-science/3008715.article.

harassers from continuing to receive federal funding. Federal funding agencies could handle sexual harassment by including it along with their efforts to enforce research misconduct, and such an approach would provide a mechanism for withdrawing funding and holding the institution and the individuals responsible.

Recent articles in scientific journals (Kuo 2017; Witze 2016; Hoy 2016) discuss the arguments for and against including sexual harassment in the definition of research misconduct. Several of the authors express concern that processes in place for investigating research misconduct are ill equipped to address allegations of sexual harassment in the research and educational environment and that other jurisdictions exist to address them. When this committee interviewed a panel of deans and other senior academic administrators, issues of increased cost, lack of expertise, and increased personnel resources, and the existence already of Title IX processes were cited as reasons not to bring sexual harassment into the realm of research misconduct. They indicated that for many colleges and universities, sexual harassment, infractions of the institution’s honor code, and research misconduct (as federally defined) were each handled by different offices.

One of the consequences of strictly defining research misconduct as FFP is that many detrimental behaviors, from conflict of interest to harassment, can go unchecked when institutions focus exclusively on research misconduct rather than the broader concept of protecting research integrity. Research integrity experts such as Nicolas Steneck, a research ethicist at the University of Michigan, have recently indicated that reexamining the strict definition of research misconduct is needed. In his comments in a recent Retraction Watch article,²² Steneck pointed out that the current definition of research misconduct “means that the vast majority of cases are not being addressed.” Further, he said that the tendency to not want to trigger the formal process tends to make people “back away from it.”

In the past few years, some scientific organizations, as well as parts of the federal government have opted to focus more broadly on policies about research integrity and on codes of ethics rather than on the narrow definition of research misconduct. This broader focus is allowing them to include and emphasize that sexual harassment is unethical and affects the integrity of research. Both the U.S. Geological Survey and the Department of the Interior have broader scientific integrity policies that apply to employees, appointees, volunteers, grantees, and contractors and include other professional behaviors in addition to the federally defined research misconduct behaviors.^23,24 Some scientific societies, like the American Geophysical Union (AGU),²⁵ the Institute of Electrical and Electron-

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²² See http://retractionwatch.com/2017/02/23/labeling-bad-behavior-scientific-misconduct-help-hurt-research-integrity-debate-rages/ [January 2018].

²³ See https://www2.usgs.gov/usgs-manual/500/500-25.html [April 2018].

²⁴ See https://www.doi.gov/scientificintegrity [April 2018].

²⁵ See https://ethics.agu.org/files/2013/03/Scientific-Integrity-and-Professional-Ethics.pdf/ [April 2018].

ics Engineers,²⁶ Geological Society of America,²⁷ and American Astronomical Society,²⁸ have developed new ethics policies that explicitly call out sexual harassment and discrimination. These professional societies recognize the need to protect students and early-career scientists at meetings and on field trips and to include specific ethics codes related to those venues and as services such as the SafeAGU program that protect targets of harassment at meetings. Many of these policies require a high-level senior official be responsible for handling ethics code violations, a single investigation protocol that allows for the addition of expertise and processes related to the nature of the specific complaint, and collaboration with other jurisdictions as appropriate, and include programs for education and training. Only the AGU has changed its definition of research misconduct to extend beyond the federal definition of FFP and include sexual and other forms of harassment in their definition.^29,30 However, further changes in this direction should be expected since NSF recently awarded a grant for examining and developing training materials that present sexual harassment as research misconduct.³¹

The advantages of adopting a broader emphasis on research integrity is that it provides multiple options for targets of sexual harassment to report behavior (either as an ethics violation or as a Title IV or VII violation), multiple mechanisms for administrators to discourage harassment, and a way to specifically address the health of the research environment.

As shown in Chapter 4, sexual harassment in departments, research laboratories, and the field can create an environment that impacts the research conducted by both the individual and the group, damaging scientific careers, collaboration, performance, productivity, and the integrity of research.

While dealing with sexual harassment is difficult and making changes to existing systems will not be easy, a powerful incentive for change may be missed if sexual harassment is not considered equally important as research misconduct in terms of its effect on the integrity of research. For institutions such as professional societies that are beginning to address sexual harassment in their codes of ethics and policies on research integrity, it will be important to include collaboration as appropriate with the experts in sexual harassment, legal counsel, and the home institutions. Policies should have clear and detailed procedures, confidential due process that protects both complainant and respondent, fair and thorough evaluation of evidence by a panel of experts, and appropriate sanctions. For universities and funding agencies, considering sexual harassment as equally

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²⁶ See https://www.ieee.org/about/corporate/governance/index.html [January 2018].

²⁷ See https://www.geosociety.org/GSA/Membership/Code_of_Conduct/GSA/Membership/Code_of_Conduct.aspx [January 2018].

²⁸ See https://aas.org/ethics [April 2018].

²⁹ See https://ethics.agu.org/files/2013/03/Scientific-Integrity-and-Professional-Ethics.pdf/ [April 2018].

³⁰ See https://harassment.agu.org/ [January 2018].

³¹ See https://www.nsf.gov/awardsearch/showAward?AWD_ID=1725879 [April 2018].

important as research misconduct will entail thoughtful revision of current policies and may benefit from the coordination and sharing of expertise across offices that deal with research misconduct, discrimination, and sexual harassment.

FINDINGS AND CONCLUSIONS

1. The legal system alone is not an adequate mechanism for reducing or preventing sexual harassment. Adherence to legal requirements is necessary but not sufficient to drive the change needed to address sexual harassment.
   1. An overly legalistic approach to the problem of sexual harassment is likely to misjudge the true nature and scope of the problem. Sexual harassment law and policy development has focused narrowly on the sexualized and coercive forms of sexual harassment, not on the gender harassment type that research has identified as much more prevalent and at times equally harmful.
   2. Much of the sexual harassment that women experience and that damages women and their careers in science, engineering, and medicine does not meet the legal criteria of illegal discrimination under current law.
2. Judicial interpretation of Title IX and Title VII has incentivized organizations to create policies, procedures, and training on sexual harassment that focus on symbolic compliance with current law and avoiding liability, and not on preventing sexual harassment.
   1. Private entities, such as companies and private universities, are legally allowed to keep their internal policies and procedures—and their research on those policies and procedures—confidential, thereby limiting the research that can be done on effective policies for preventing and handling sexual harassment.
   2. Various legal policies, and the interpretation of such policies, enable academic institutions to maintain secrecy and/or confidentiality regarding outcomes of sexual harassment investigations, arbitration, and settlement agreements. Colleagues may also hesitate to warn one another about sexual harassment concerns in the hiring or promotion context out of fear of legal repercussions (i.e., being sued for defamation and/or discrimination). This lack of transparency in the adjudication process within organizations can cover up sexual harassment perpetrated by repeat or serial harassers. This creates additional barriers to researchers and others studying harassment claims and outcomes, and is also a barrier to determining the effectiveness of policies and procedures.

3. Title IX, Title VII, and case law reflect the inaccurate assumption that a target of sexual harassment will promptly report the harassment without worrying about retaliation. Effectively addressing sexual harassment through the law, institutional policies or procedures, or cultural change requires taking into account that targets of sexual harassment are unlikely to report harassment and often face retaliation for reporting (despite this being illegal).
4. Fears of legal liability may prevent institutions from being willing to effectively evaluate training for its measurable impact on reducing harassment. Educating employees via sexual harassment training is commonly implemented as a central component of demonstrating to courts that institutions have “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” However, research has not demonstrated that such training prevents sexual harassment. Thus, if institutions evaluated their training programs, they would likely find them to be ineffective, which, in turn, could raise fears within institutions of their risk for liability because they would then knowingly not be exercising reasonable care.
5. Holding individuals and institutions responsible for sexual harassment and demonstrating that sexual harassment is a serious issue requires U.S. federal funding agencies to be aware when principal investigators, co-principal investigators, and grant personnel have violated sexual harassment policies. It is unclear whether and how federal agencies will take action beyond the requirements of Title IX and Title VII to ensure that federal grants, composed of taxpayers’ dollars, are not supporting research, academic institutions, or programs in which sexual harassment is ongoing and not being addressed. Federal science agencies usually indicate (e.g., in requests for proposals or other announcements) that they have a “no-tolerance” policy for sexual harassment. In general, federal agencies rely on the grantee institutions to investigate and follow through on Title IX violations. By not assessing and addressing the role of institutions and professional organizations in enabling individual sexual harassers, federal agencies may be perpetuating the problem of sexual harassment.
6. To address the effect sexual harassment has on the integrity of research, parts of the federal government and several professional societies are beginning to focus more broadly on policies about research integrity and on codes of ethics rather than on the narrow definition of research misconduct. A powerful incentive for change may be missed if sexual harassment is not considered equally important as research misconduct, in terms of its effect on the integrity of research.

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