Starting next month, NIH-funded institutions will no longer have discretion about whether to report that harassment is the reason they’ve requested a change in investigator status on an award. As of July 9, such reporting will be a must, not a “should,” as acting director Larry Tabak put it.
That’s because NIH, with help from Congress, now has the authority to compel such information, and more. As RRC reported in the April issue, Congress’ final fiscal year 2022 continuing resolution, now Public Law 117-96, included new mandates for NIH, such as establishing a new Center for Alternatives to Animals in Research and Testing.[1] At the time it wasn’t clear how NIH planned to handle a separate mandate, but that changed with an NIH notice on May 10.[2]
“Updated Requirements for NIH Notification of Removal or Disciplinary Action Involving Program Directors/Principal Investigators or other Senior/Key Personnel” responds to Sec. 239 of the law, which states:
“The Director of the National Institutes of Health shall hereafter require institutions that receive funds through a grant or cooperative agreement during fiscal year 2022 and in future years to notify the Director when individuals identified as a principal investigator or as key personnel in an NIH notice of award are removed from their position or are otherwise disciplined due to concerns about harassment, bullying, retaliation, or hostile working conditions. The Director may issue regulations consistent with this section.”[3]
In announcing the notice, Tabak said, “While NIH has made progress toward our goal of ending harassment in biomedical research, NIH lacked clear authority to require funded institutions to report to NIH whether personnel changes to an NIH grant are related to harassment, only that they should report it. This limited NIH’s awareness of when harassment was affecting NIH-supported activities, and therefore NIH’s ability to take necessary action to ensure appropriate grant stewardship,” but the new law changed this situation.[4]
NIH established a new form online to be used by an authorized organization representative to notify NIH within 30 days of removal or imposition of a disciplinary action.
In a blog post the same day as Tabak’s statement and the notice, Michael Lauer, NIH deputy director for extramural research, along with Marie Bernard, NIH’s chief officer for scientific workforce diversity, explained that the following information must be reported:[5]
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“Name of the Authorized Organization Representative submitting the notification
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“Name of the individual of concern
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“Description of the concerns
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“Action(s) taken
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“Anticipated impact on the NIH-funded award(s)”
“We will then consult with the institution. If necessary, we may take additional actions ranging from changing personnel, restricting award funds, or suspending or terminating the grant as outlined in the NIH Grants Policy Statement,” they wrote.
Lauer and Bernard called the requirement “a major step in helping us continue ensuring the safety for all involved in NIH-supported research. As Dr. Tabak noted in his statement, ‘Wherever NIH research activities take place, our priority will always be to do what we can to eliminate harassment and ensure that the integrity of scientific endeavor is never compromised by the fundamental injustice of workplace harassment.’”
2021 Data Showed Discrimination Cases
Last June, Lauer shared data on sexual and other harassment cases that spanned from 2018 to April 30, 2021, with just those two categories.[6] NIH reported handling 192 (61.1%) related to sexual harassment and 122 (38.9%) other during this period.
At that time, 111 (57.8%) of sexual harassment allegations were formally investigated, with 48 (25%) substantiated. Fifty-four (28.1%) investigators were removed, 50 (26%) left the institution and 87 (45.3%) were removed from peer review.
In the other category, 50 (41%) were investigated and 23 (18.9%) allegations were substantiated. Twenty-one (17.2%) of investigators were removed, 11 (9%) left the institution and 38 (31.1%) were removed from peer review.
NIH, which updates the data quarterly, recently posted new numbers. It is currently reporting cases under three categories: “sexual harassment only,” “sexual harassment plus other” and other.[7] This makes comparison to previous numbers difficult.
The agency explains on its website that “other” is a broad category of actions that “include, but are not limited to, harassment, bullying and discrimination based on race, gender, national origin, etc. Due to the frequent overlap of types of allegations in a single case, and the concern about small numbers and privacy, we do not break out that data in our reporting.”
Last year NIH broke bullying and discrimination out from the other category in terms of total numbers of cases (from 2018 to April 30, 2021, there were 46 allegations of bullying and 35 of racial discrimination).
NIH Shares New Harassment, Other Data
Overall, 109 (64.1%) investigators were accused of sexual harassment only, 58 (64.4%) of sexual harassment plus other and 82 (44.6%) of other were formally investigated. The new data also shows that 59 (34.7%) allegations of sexual harassment were substantiated. That dropped to 23 (25.6%) for sexual harassment plus other allegations, and 30 (16.3%) of other only.
Fifty (29.4%) investigators were removed for sexual harassment, 14 (15.6%) for sexual harassment plus other and 28 (15.2%) for other. In the category of sexual harassment only, 88 (51.8%) were removed from peer review, as were 36 (40%) for sexual harassment plus other and 51 (27.7%) for other.
Last year, Lauer expressed frustration that some institutions were taking extraordinary steps to sanction investigators for harassment yet resisting removing them from awards, and keeping actions secret via nondisclosure agreements.
In other instances, investigators were going to a new institution that asks for an award transfer, “oblivious” to what had really happened, Lauer said.
It is not clear how, or if, the new requirement will change this situation, known colloquially as “pass the harasser.”