Introduction

One troubling aspect of sexual harassment by faculty is the ability of these individuals to quietly move on to new academic positions at other institutions of higher education (IHEs) without the disclosure of their behavior. This practice is known as passing the harasser¹ and is exacerbated by higher education’s general lack of transparency about findings of sexual harassment. The ramifications of passing the harasser include not only failing to hold harassers accountable for their actions but also reinforcing an institutional climate in which sexual harassment is perceived as tolerated. This lack of transparency needs be addressed to the extent allowed by relevant laws to prevent further harm to the academic community.

Passing the harasser typically refers to the movement from one institution (“former institution”) to another (“hiring institution”) of faculty members who have been found responsible for sexual harassment or are still under investigation for allegations of sexual harassment, without disclosure of this information to the hiring institution. In some instances, harassers evade disciplinary consequences by preemptively departing their former institutions or negotiating the terms of their exit, including what can and cannot be shared with a future employer.

Confidentiality due to nondisclosure agreements, legal concerns, or other privacy protections exacerbate the problem by preventing the sharing of information between former and hiring institutions. Legal concerns might include the potential ramifications of disclosing formal findings (e.g., defamation, tortious interference), or the potential ramifications of disclosing ongoing investigations. The liability depends on a complex web of court cases, federal law, state law, collective bargaining agreements, and individual waivers. Institutions with a low risk tolerance for lawsuits about disclosure may be more likely to respond to requests for formal findings than open investigations; however, because these disclosure practices and changes in state laws are so new, there is no information that would indicate that more lawsuits are filed in response to disclosing open investigations versus formal findings.

Yet even when information is available and could be provided, hiring institutions may not request it. While background checks are common practices, they are typically limited in scope to criminal records and do not include investigative findings or sanctions levied by employers. Inquiring about misconduct beyond the scope of the background check is an unusual practice, and the human resources staff who would typically be responsible for doing so may not be directly involved in the recruitment or selection of new faculty members. For tenure-track positions in particular, a search committee composed of members of the department, potential supervisors, or other peers may be utilized, leaving the faculty hiring process largely decentralized and disconnected from human resources. Relatedly, “academic star culture,” or the belief that well-known academics “can operate without ordinary rules being applied to them” can contribute to a hesitance to dig too deeply into the background of any professor who commands significant resources (NASEM, 2018). Similar issues can exist within an institution as well, particularly when human resources is not engaged in promotion decisions, those responsible are not provided with adequate training, or academic stars are given additional

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leadership responsibilities without much scrutiny. This can result in a lack of attention to or mishandling of an institution’s own disciplinary records for determining and enforcing sanctions.²

The incidence rate of passing the harasser is difficult to assess for the very reasons the problem exists—the private nature of misconduct investigations as well as the lack of policies requiring hiring institutions to request and make disclosures of misconduct. While passing the harasser itself is difficult to quantify, studies on the rate of faculty sexual harassment demonstrate that it is a severe and pervasive problem in higher education. Studies report that 5.9 percent of undergraduate women experience harassment from faculty or staff, as well as 22.4 to 38 percent of women in graduate school and 23.4 percent of men in graduate school (Cantor et al., 2015; Rosenthal et al., 2016). Faculty members themselves are also at risk, with one study indicating that as many as 58 percent of women staff and faculty experience harassment, a rate of workplace harassment second only to the military (Ilies et al., 2003; NASEM, 2018).

Although quantitative data on passing the harasser is scarce, situations have come to light through activism, media coverage, and court cases, notably:

• New York Times, “N.Y.U. Will Not Hire Scientist Accused of Harassment After Backlash” – “New York University’s Grossman School of Medicine will no longer consider… a biologist facing accusations of sexual harassment, for a faculty position after news that he was in the running prompted a backlash among students and faculty members” (Wong, 2022).
• Forbes, “Sexual Misconduct Allegations Against Harvard Professor And The ‘Pass The Harasser’ Problem” – “Three graduate students sued Harvard University . . . over the university’s handling of sexual harassment allegations against [an] anthropology professor... The students claim that Harvard knew that [the professor] had a history of sexual misconduct at his previous university, and they hired him anyway” (Elsesser, 2022).
• New York Times, “Les Miles Leaves Kansas Days After Harassment Accusations at L.S.U. Became Public” – “The University of Kansas said . . . that it had ‘agreed to part ways’ with its football coach… after the release of a 2013 report that detailed accusations that [the coach] had sexually harassed female student workers when he was at Louisiana State University” (Blinder, 2021).
• Stevens Point Journal, “UW–Stevens Point Assistant Dean Accused of Sex Harassment Went on to Work at Other Schools” – “A University of Wisconsin–Stevens Point official who handled sexual misconduct complaints resigned after he was accused of sexually harassing a woman on campus in 2015, then went on to hold identical jobs at other universities, including at another UW school” (Hovorka, 2018).

As these situations and others demonstrate, passing the harasser is a significant issue that can occur within and across employee populations (e.g., tenured faculty, coach, mid-level administrator) and areas

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or functions of an institution—including Title IX offices in at least one case. It creates a risk of grievous harm for individuals subjected to repeated or continued harassment.³ In addition to these grave personal consequences (see NASEM, 2018 for further discussion of the effects of sexual harassment), institutions can be mired for years in litigation and scandal and can suffer, among other things, reputational damage and loss of revenue. For example, the University of Rochester (UR) spent nearly 3 years and $9.4 million settling a lawsuit brought by both faculty and students, alleging the mishandling of sexual harassment and retaliation complaints against one tenured professor (Mangan, 2018, 2020).⁴ Although the professor in question was not found responsible for violating UR’s sexual misconduct policies, the university’s reputation suffered, and their president resigned (Mangan, 2018, 2020).

In a recent analysis performed by one insurance company, 26 percent of 134 claims involving sexual harassment from 2015 to 2021 incurred a loss to either the insurance carrier, the institution, or both, totaling in the tens of millions of dollars (Pettegrew, 2023). That sum is likely incomplete, as “some claims remained open and are likely to develop further” (Pettegrew, 2023). While UR was able to settle due to their insurance carrier’s willingness to pay the full $9.4 million (Mangan, 2020), insurers are increasingly excluding coverage of incidents involving sexual harassment and assault (Welle, 2023). For example, Baylor University is currently embroiled in a high-profile conflict with its former insurer, “which sued in January to stop covering claims against the university in a vast sexual-assault scandal” (Welle, 2023). In light of these issues, some insurers are recommending that their client institutions augment background checks with reference checks similar to those implemented by the University of Wisconsin System (Harton & Benya, 2022b; Pettegrew, 2023).

Allowing known harassers to transition into new roles within academia without facing consequences for findings of sexual harassment, or skipping out on investigative processes, is not only a financial and reputational concern for institutions but also a problem that undermines efforts to demonstrate intolerance of sexual harassment. In particular, it may intensify experiences of institutional betrayal, or “the general perception that institutions are unable or fail to prevent or respond supportively to wrongdoings by individuals” (Cantalupo & Kidder, 2019; Smith & Freyd, 2014; as quoted in NASEM, 2018).

In order to foster organizational climates that prevent sexual harassment and hold individuals accountable for their behavior, IHEs need to explore options for policies and procedures that increase transparency and facilitate the sharing of information about findings of sexual harassment (NASEM, 2018). One aspect of this is attending to these issues during the hiring process, such as during background checks and vetting of job candidates. With an improved understanding of existing anti-passing-the-harasser policies and the reasoning behind them, IHEs can develop and implement similar policies in whichever way best suits their own communities. This Issue Paper provides a first step in collating the emerging policies and considerations that are being developed in parallel on campuses across the nation as a resource for further engagement.

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The Action Collaborative and Key Points from the 2018 Sexual Harassment of Women Report

The Action Collaborative on Preventing Sexual Harassment in Higher Education of the National Academies of Sciences, Engineering, and Medicine brings together academic and research institutions and key stakeholders to work toward targeted, collective action on addressing and preventing sexual harassment across all disciplines and among all people in higher education. The Action Collaborative includes four working groups (Prevention, Response, Remediation, and Evaluation) that identify topics in need of research, gather information, and publish resources for the higher education community. Members of the Response Working Group decided to explore the challenges and potential resolutions related to policies and practices intended to prevent passing the harasser (e.g., lack of transparency in the adjudication process) discussed in the 2018 National Academies report Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.

The Sexual Harassment of Women report (NASEM, 2018) notes that compliance with various legal policies and privacy laws, and the interpretation of such policies, have meant that academic institutions have maintained “secrecy and/or confidentiality regarding outcomes of sexual harassment investigations, arbitration, and settlement agreements.” It also notes that fear of being sued may inhibit an individual’s willingness to warn about sexual harassment in the context of hiring or promotion. According to the report, “this lack of transparency in the adjudication process within organizations can cover up sexual harassment perpetrated by repeat or serial harassers.” At the federal and state level, the report recommends legislative action “prohibiting confidentiality in settlement agreements that currently enable harassers to move to another institution and conceal past adjudications.” At the institution level, it recommends that academic institutions “be as transparent as possible about how they are handling reports of sexual harassment,” carefully balancing confidentiality concerns with demands for transparency.

The report also offers insight into the ramifications of passing the harasser on organizational climate. Failing to prevent serial harassers from moving from one organization to another as well as the “general perception that institutions are unable or fail to prevent or respond supportively to wrongdoings by individuals (institutional betrayal) leads to a climate of distrust.” Moreover, “the degree to which a particular organization’s climate is seen by those in the organization as permissive of sexual harassment has the strongest relationship with how much sexual harassment occurs in the organization” (NASEM, 2018; Willness et al., 2007), with a lack of meaningful sanctions being a key feature of such an environment.⁵ In this way, institutions that hold perpetrators accountable by seeking to obtain or disclose information about past harassment are also taking steps to establish an environment that is not permissive of harassment in general.

Purpose of This Paper

Currently, neither a universal system nor common policies or practices exist for sharing information between institutions about faculty members who are found responsible or are under investigation for

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sexual harassment. Not only do many colleges and universities in the United States lack policies designed to dismantle passing the harasser, but existing policies and practices that implement legal confidentiality requirements perpetuate the problem. However, there has been an unprecedented increase in anti-passing-the-harasser policies in recent years; in fact, the authors of this paper have identified 10 institutions with such policies (and 5 more with complementary or supportive policies, tools, or principles) and believe that others may potentially have similar, unwritten procedures or policies that are not publicly available. As institutions such as the University of California (UC), Davis and the University of Wisconsin (UW) System, and many others begin implementing innovative policies and practices to stop passing the harasser, questions about implementation are arising that merit further consideration and research (Harton & Benya, 2022a, 2022b).

The aim of this paper is to provide academic institutions with an examination of the landscape of practices and the considerations for implementing procedures to prevent passing the harasser, as well as examples of how some colleges and universities are addressing specific challenges, so that administrative leadership has the information they need to create policies tailored to their institution’s needs. To this end, the paper (1) describes the landscape of policies and practices in higher education to prevent passing the harasser, including federal- and state-level legislation and examples of how institutions outside of the field of higher education have addressed these concerns; (2) highlights current considerations and strategies in implementing policies and practices to prevent passing the harasser; and (3) identifies areas of research needed to advance those efforts.

Notably, the purpose of this paper is not to examine the root causes of passing the harasser or all possible solutions, as there is not yet enough research available to determine best practices. This paper is specifically intended to explore policies and procedures that augment background checks and other information-gathering strategies during the hiring process. As described in the innovative practice papers from UC Davis and the UW System, policies like these are potentially promising approaches to address the lack of transparency identified by the Sexual Harassment of Women report (NASEM, 2018). We are hopeful about the promise that these policies offer, and interested in the evaluations of these policies to determine their effectiveness. To this end, we have identified key considerations for implementing policies that target the hiring process in order to support those who are interested in implementing them.

The topics discussed here come from our collective experience and knowledge as a group that represents a range of stakeholders and disciplines within the higher education community, including Title IX officers, provosts, academic administrators, human resources staff, general counsel, sexual assault prevention and education program leaders, and faculty members. We believe that addressing these challenges, starting with the institutional members of the Action Collaborative and then expanding beyond, will not only be of service to faculty and administrators but also assist in creating the changes in organizational climate essential to preventing both sexual harassment and experiences of institutional betrayal (Cantalupo & Kidder, 2019; Flaherty, 2019; Smith & Freyd, 2014; Stubaus & Harton, 2022).