Areas of Further Consideration and Research to Prevent Passing The Harasser

Given the relative novelty of policies to prevent passing the harasser, little data on their effectiveness exist. Indeed, no consensus has been reached on what “success” looks like for these policies, which may be different for different institutions. Concepts that may or may not be useful metrics to determine the success of a policy include dissuading applicants with a history of misconduct from applying to new positions, collecting comprehensive information about all applicants’ misconduct history, or declining to hire individuals with a history of misconduct.

However, the identification and evaluation of appropriate metrics is only one consideration for future research and practices. The feasibility and mechanics of complementary policies such as those on data management and disclosing information about former employees are another important consideration, as is the effect of these policies on DEI at IHEs. This section explores several important areas of further research and discussion for institutions to consider and poses questions to initiate conversations on these ideas.

Evaluation

As discussed in the Purpose of this Paper section, best practices are not yet known for these kinds of anti-passing-the-harasser policies that target the hiring process. In order to ascertain best practices, more institutions need to adopt or pilot these policies, and evaluations need to be conducted to assess overall effectiveness, as well as comparative effectiveness across approaches.¹⁶

When evaluating the success of these anti-passing-the-harasser policies, IHEs could consider the metrics that would be appropriate for their particular organizations. For example, some institutions may prefer to enact a blanket rejection policy for all candidates with a history of misconduct to ease the burden on their administrators; however, if an institution wants to make hiring decisions at its own discretion based on the information provided, it might use a metric that is primarily about the effectiveness of the information-gathering mechanisms. This may include data related to how often other institutions respond to requests for information, what kinds of institutions are likely to reply, or how closely self-disclosures from applicants align with the information shared by institutions. It might also be valuable to evaluate the alignment of hiring decisions with the severity of misconduct disclosed. In that case, it may be worthwhile to collect and analyze confidential, deidentified information about the nature and severity of the misconduct paired with the hiring decision that was made. This is particularly useful for institutions that want to ensure that decisions are being made equitably, and that no group of applicants (e.g., women, applicants of color, applicants with disabilities) are being evaluated more punitively than others.

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Institutions can also consider evaluating how they are managing the data they gather. Some institutions may request to see information about employees from 5 or more years ago—possibly even decades ago—so how employee records are maintained and the length of time for which they are maintained is important. Additionally, whether data about hiring decisions, retention of references, or records of hiring committee deliberations are maintained may affect which questions can be answered about data management and to what degree they can be answered. Questions to consider include (1) Can these data be accessed by an independent third party to assess the success of the policies? and (2) Can these data be used to compare incidents by people hired before and after the effective date?

Beyond Hiring

This issue paper largely focuses on policies that govern data collection in support of initial hiring decisions, yet the problem of passing the harasser also arises in subsequent appointments, reappointments, promotions, tenure decisions, and transfer between roles within a university or university system. For example, a report from Harvard University explored how a faculty member was able to evade sanctions and take on additional leadership roles and higher degrees of authority as a result of nontransparent policies and incomplete record-keeping (Harvard University, 2021). To prevent internally passing the harasser, IHEs might consider clarifying policies and procedures regarding existing staff. One example of this is Rutgers University, which issued a Statement on Professional Ethics in 2021 that allowed sexual misconduct, harassment, or other forms of bullying behavior to “be taken into account when faculty are being evaluated for reappointment, promotion, and tenure” (Rutgers University, 2019).

Moreover, the success of anti-passing-the-harasser policies is somewhat dependent on the successful adoption of complementary policies. For example, several institutions currently have policies on how to collect information on applications in support of hiring decisions, but they do not yet have similar policies governing the disclosure of the same information about their own employees (or former employees) to other institutions. For both information-gathering and information disclosure policies to be successful across the board, some degree of consistency among institutions in both the existence and content of these policies is important. And even if every IHE has a policy to both request and disclose information on previous misconduct, but institutions have inadequate policies for the management of personnel files and employment histories, then preventing passing the harasser could still prove challenging. To this end, a cohort-level approach may be a useful complement to the individual institutional approach, as associations, accreditors, and other cross-institutional organizations may be able to provide consistency between IHEs.

Some IHEs have also established supportive policies for completing investigations. As many anti-passing-the-harasser policies only request information on formal findings, there are potential gaps in cases where employees have left an institution during an investigation to prevent any findings from being concluded. To address this issue, some IHEs have established policies to continue investigations regardless of whether an employee leaves the institution. While a lack of participation by the employee can be a challenge, coming to a formal investigative conclusion will yield information that can be shared upon request. Other examples of supportive policies may include institutional decisions to ban NDAs and requirements for job applicants

to waive NDAs, non-disparagement agreements, and, to the extent permitted by law, other limitations to disclosure.

Inequitable Effect of Policies

Preventing passing the harasser is a DEI issue because harassment disproportionately affects people of color (Cantalupo & Kidder, 2019; NASEM, 2018). The implementation of these policies, though, is also a DEI concern because faculty of color may face disproportionate scrutiny and penalties compared with white faculty with similar histories of misconduct. While the current body of research does not include whether policies against passing the harasser could be discriminatory in application, IHEs that enact these policies may want to be mindful of that possibility and set up systems to responsibly monitor for such consequences or outcomes. Potential inequities may be either perpetuated by anti-passing-the-harasser policies that automatically reject all candidates with any history of misconduct or exacerbated by policies that allow for a biased risk assessment of candidates with such a history.

Regarding policies that automatically reject all candidates with a history of misconduct, the issue is—in theory—that the pool of candidates with such a history is disproportionately composed of people of color. It is difficult to say how credible this theory is, as related research is focused on either students or misconduct unrelated to sexual harassment. While most available data on Title IX-related sanctioning does not link the outcome of investigations to demographic factors like race or ethnicity, several articles argue that university disciplinary procedures discriminate against students of color (Trachtenberg, 2017; Yoffe, 2017). This aligns with non-harassment research that shows K-12 students of color are disproportionately sanctioned by their school systems (Owens & McLanahan, 2019) and people of color are sentenced more harshly than their white counterparts in the U.S. court system (Hager, 2017; Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998; Subramanian et al., 2018; The Sentencing Project, 2022). Despite this alignment, the little data available within the criminal or educational systems regarding cases of sexual harassment and misconduct indicate that people of color may not be disproportionately sanctioned (Cantalupo, 2019, 2020), perhaps due to the typically intra-racial nature of such misconduct. While it is unclear whether noncriminal sanctions for sexual harassment may be disproportionate for faculty of color, the possibility is something that could be monitored by IHEs implementing anti-passing-the-harasser policies.

Regarding policies that consider the context around candidates with a history of misconduct and make decisions on a case-by-case basis, the issue is that hiring committees may engage in biased assessments of the candidates based on race or ethnicity. In other words, IHEs may be less likely to hire faculty of color with a history of misconduct because the hiring committee may implicitly perceive race as a factor in the risk the candidate poses. This concern arises from research indicating that racial discrimination in hiring—including in higher education—has not declined in recent years (Quillian et al., 2017; Sensoy & DiAngelo, 2017). Moreover, studies within higher education show that students routinely rate professors of color poorly compared with white male professors (Chávez & Mitchell, 2020; Flaherty, 2021; Gassam Asare, 2022), as well as some studies that suggest employees at IHEs experience perceptions of isolation, rejection, and discrimination at their institutions because of their race or ethnicity (Gaston Gayles, 2022). In addition

to collecting data that could be used to evaluate whether there is a racial bias in the implementation of these policies, IHEs may consider a blind assessment process that shields the hiring committee from the demographic information of applicants.

More research is needed on the implications of sanctioning of faculty of color, and policies to prevent passing the harasser could consider the possibility that hiring and promotion determinations made using these policies may be influenced by bias against faculty of color. Evaluation efforts may also consider this possibility and strive to collect and analyze hiring decisions in a way that elucidates possible bias in implementation.