NASA Implements New Harassment Reporting Requirements

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Publication date: 
24 April 2020
Number: 
42

Starting this month, NASA-funded institutions are required to notify the agency whenever they determine a principal or co-investigator has violated policies concerning harassment or assault, or if the personnel are placed on leave due to a harassment investigation. NASA modeled the policy on one first implemented by the National Science Foundation in 2018.

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A sign showing the NASA logo

Image credit – Bill Dickinson / Flickr, CC BY-NC-ND 2.0

As part of a broader federal effort to combat sexual harassment in STEM fields, NASA instituted a new policy this month that requires grantee institutions to notify the agency whenever they determine a principal or co-investigator has violated policies concerning any form of harassment or assault. The policy also requires institutions to report if such personnel are placed on leave or subjected to other “administrative actions” due to harassment investigations.

Upon receiving a report under the policy, which went into effect on April 9, NASA will work with the institution to determine a commensurate course of action, which can include removing the investigator from the grant, substituting in a new investigator, or reducing the funding amount. In cases where those options are not available or adequate, NASA can opt to terminate the award.

The requirements are modeled on a policy implemented in 2018 by the National Science Foundation, which it put in place after a series of news articles drew widespread attention to cases of harassment by grantees.

NASA navigates privacy concerns

Over the past two years, federal science agencies have been under pressure to do more to protect grantees against harassment, particularly in the wake of a landmark 2018 report by the National Academies on the prevalence of sexual and gender-based harassment in academia. At the same time, some universities have raised concerns about the breadth of new reporting requirements advanced by agencies and the associated privacy implications.

In announcing its new reporting policy last month, NASA noted it made modifications in response to comments from universities on a draft policy released last summer, while declining their calls to narrow the scope of administrative actions that trigger the reporting requirement. For instance, the Council on Governmental Relations, an association representing universities, argued that such administrative measures are often “non-punitive and designed to protect all parties involved pending an outcome of an investigation.”

“We believe a reporting requirement based on administrative actions could chill the use of these important interim measures out of concern that NASA may create a record or take action against a PI or Co-Investigator prematurely,” the association wrote. As an alternative, it proposed NASA could limit the reporting to situations where a grantee has been found responsible but is on administrative leave pending an appeal. It also suggested NASA could adopt language used in the House’s pending Combating Sexual Harassment in Science Act, which was amended to stipulate that the reporting only be required if the administrative action “affects the ability of grant personnel or their trainees to carry out the activities of the grant.” 

In response, NASA said such language would place “unnecessary limitations” on the reporting requirement. The agency also stressed that it is deliberately adopting the same requirements as NSF and indicated it does not expect they will have a chilling effect.

“NASA views one of the primary purposes of a recipient institution in taking an action such as placing an individual on administrative leave is to better ensure the safety, including psychological and physical safety, of the research environment and the academic community,” it explained, adding “NASA is confident that recipient institutions, including universities and other entities, which are committed to safety and inclusion, will continue to utilize these kinds of actions, when it is appropriate to do so.”

The confidentiality of the reported information was also a major concern raised in comments on the draft policy. The University of California System warned that a lack of adequate privacy protections could lead to unintended consequences, such as potential retaliation against witnesses. It also argued that reporting on open investigations could “interfere with the rights of both the reporting party and the party under investigation, undermine due process, lead to misunderstandings of NASA's role in investigations and damage careers, including those of the (co-)PIs, co-workers and students.”

NASA replied that it “recognizes the sensitivity of the information that may be contained in the notifications” and would take steps to protect the information consistent with relevant federal laws. The agency also clarified that reports should not include any names other than that of the principal or co-investigator and noted that it will use a secure mechanism to collect and process notifications, limiting access to NASA staff with an “express need to know.”

University commenters more generally called for agencies to develop harmonized requirements in light of the potential administrative burden created by an emerging set of individual agency policies and their intersections with related state and federal laws, such as the Title IX anti-discrimination statute. In response, NASA said it is participating in interagency coordinating mechanisms and has “fully aligned” its requirements with NSF’s policy, such as by adopting the same turn-around time of 10 days for reporting harassment determinations and administrative actions.  

Requirements tied to award terms

To implement the new reporting requirements, first NSF and now NASA have added them to the set of “terms and conditions” that institutions agree to abide by after accepting grant money. Former NSF Director France Córdova, who recently concluded her six-year term in the position, traced the origins of this decision in a March article published in the journal Science.

Córdova noted she wanted to move quickly in response to public outcry associated with the #MeToo movement but recognized that developing a new regulatory policy would be time-consuming.

“A campaign to simply reiterate our existing policy would be insufficient. We needed a solution that could be integrated into NSF's legal and policy framework without running afoul of other legal structures (including Title IX),” she recalled. NSF ultimately turned to its statutory grantmaking authorities for leverage, she explained, placing harassment reporting “alongside numerous other requirements that nearly 2,000 institutions already agree to every year when they accept NSF funding.” She added that since implementing the policy, NSF has received 24 harassment-related action notifications from institutions.

Like NASA, NSF faced pushback on the requirement to report interim administrative actions in addition to formal harassment determinations. “Some officials from the university community have questioned whether reporting is appropriate before their institutional processes to determine guilt or innocence are complete, including all appeals, which often take months if not years,” Córdova observed. Justifying the agency’s approach, she continued, “NSF's concern at that stage is not the guilt or innocence of an individual — it's whether publicly funded research can continue under the conditions of the existing award agreement in a manner that ensures the safety of all personnel working on the award.”

In response to concerns that institutions might avoid taking administrative actions to bypass the reporting requirements, Córdova said NSF developed a secure online system for individuals to report complaints directly to the agency. Noting that individuals could provide such information to NSF even before the system was developed, she added, “That commenters were unaware of this indicates that we must communicate better.”

Pointing to ripple effects of NSF’s actions across the government, she observed, “When one federal agency works on a culture-change issue, it creates opportunities for others to respond within their own domains.”

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