Sexual Harassment in Medicine: Toward Legal Clarity and Institutional Accountability

Sexual harassment is a pervasive problem in health care, and the #MeToo and #MeTooMedicine movements have provided an important opportunity to assess and better address the problem. Often, there are large power differentials between physicians or other institutional leaders and the medical students they are shepherding through early career development. In this issue of EClinicalMedicine, Phillips et al. surveyed Canadian medical students about their experiences with and responses to sexual harassment [1]. Interestingly, the 120 respondents in this qualitative study that described specific incidences of sexual harassment pointed to peers and patients as more common perpetrators than faculty. Similar to other reports, men were the predominant aggressors while the medical student-victims were predominantly women. Victims often described shame and explained how they tried to prevent or mitigate harm by changing their own behavior. Many opted for silence over confrontation. The authors concluded that respondents believed in the power of educating their peers and faculty as a means of improving the training environment.

In the United States (US), there are laws aimed at preventing harassment in the workplace (Title VII of the Civil Rights Act of 1964) and within institutions of higher learning (Title IX of the Education Amendments of 1972). There remains considerable uncertainty as to which law protects medical students, residents, and physicians in medical schools and academic medical centers [2]. Some argue that medical students ought to be able to bring suit under both provisions; circuit courts are split on the issue, and neither the US Supreme Court nor Congress have weighed in. This absence of clarity is problematic, given that Title VII and Title IX have similar standards with regard to burden of proof but vastly different standards for institutional liability. In particular, Title IX poses greater repercussions to institutions, including the potential to revoke federal funding; this would represent a catastrophic blow to medical schools (whose students take federal loans to cover tuition expenses) as well as graduate medical education programs (which are largely federally funded). The Fifth Circuit Court of Appeals has held that Title VII should be the exclusive remedy for employees of federally funded educational institutions, including university medical centers [3]. Yet in a more recent case, the Third Circuit Court of Appeals determined that a private hospital's medical residency program was an educational program under Title IX [4].

Recently, the National Academies of Engineering, Science and Medicine (NASEM) issued a report titled Sexual Harassment of Women: Climate, Culture and Consequences in Academic Sciences, Engineering and Medicine [5]. The report notes: “[t]oo often, judicial interpretation of Title IX and Title VII has incentivized institutions to create policies and training on sexual harassment that focus on symbolic compliance with current law and avoiding liability, and not on preventing sexual harassment.” The report argues that compliance with both provisions should be considered a floor, not a ceiling, noting that “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.” In the wake of the NASEM report, the National Institutes of Health has updated its own policies for addressing and preventing sexual harassment [6].

Consideration should be given to reshaping the culture of various institutions and organizations in which medical students are trained. A key element of this culture shift involves addressing the spectrum of micro- and macro-aggressions and inequities that women in medicine face on a daily basis [7]. Some of our work has focused on gender disparities in medical societies, given their role in introducing medical students and other trainees to evidence-based medicine, professionalism, and medical ethics. For example, we co-authored and shepherded important gender equity resolutions through the American Medical Association and the Massachusetts Medical Society [8]. All professional societies must commit to examining their own culture and addressing systemic disparities including, but not limited to, leadership at the highest levels [9], [10].

One important consequence of the #MeToo movement is increased attention, not only on the perpetrators, but on two other groups: leaders who have failed to effectively address problems within their purview and bystanders who have witnessed such behavior and opted not to intervene–especially those in a position of power who risk little harm to their own reputations and have at the minimum a moral and ethical obligation to protect those who are vulnerable. Educational efforts should focus on when and how to speak up and report problems, in order to break the pervasive culture of silent complicity in the face of workplace harassment.

Phillips et al. are correct that education is essential to remedying a culture of sexual harassment in health care, but we cannot stop there. The NASEM report concludes with a powerful recommendation: “make the entire academic community responsible for reducing and preventing sexual harassment” [5]. Only then will we see a culture change in medicine, toward an environment where the focus on rooting out sexual harassment is on par with emphasis on meeting Joint Commission accreditation standards or Centers for Medicare and Medicaid Services (CMS) quality measures, where repercussions for institutional noncompliance are far greater.

Author disclosure statement

JKS: no competing financial interests exist.

MSS: no competing financial interests exist.