Evidence-Based: Sexual Harassment and Gender Discrimination in Medicine Are Well-Established; It’s Time to Use the Law to Cure the Profession

by | March 7, 2018 | Gender Discrimination, Harassment

When will #MeToo come to medicine? While high-profile cases of sexual misconduct have rocked individual medical institutions—Yale in 2014 and 2015; USC in 2017; and Michigan State this year—the profession has escaped the level of public scrutiny sweeping entertainment, media, academia, and politics.

And it’s not for lack of evidence. A study appearing in the May 2016 issue of JAMA, found that 30% of female clinical researchers reported sexual harassment compared with 4% of their male counterparts. In a recent New England Journal of Medicine article, Dr. Reshma Jagsi, an author of the JAMA study, describes fellow physicians’ accounts of harassment:

One told of having a senior male leader in her field unzip the front zipper of her dress at a conference social event. Many report unwanted touching of breasts and buttocks. One described having a “tormentor” during training, and others noted remarkably consistent experiences in the operating room that ironically they thought were unique. One even described rape by a superior during her training that she had never reported.

Similar accounts have appeared in NBC NewsForbes, the Boston Globe, and on a Yale School of Medicine blog. Together, they portray a profession that has often minimized, normalized, or tolerated sexual harassment as just another demand of the job.

Moreover, sexual harassment has proliferated alongside other forms of gender discrimination. Although the number of women enrolling in medical schools has increased, men still occupy a disproportionate share of leadership positions in medicine. A 2014 study published in JAMA, found that women were less likely than men to have achieved full-professor status, a finding which held across specialties. A 2011 study reported comparable results: “Throughout their careers, women held fewer leadership roles than men (P < .001).”

Female physicians also make less than their male counterparts. Articles appearing in JAMA (in 2012), JAMA Internal Medicine (in 2016), and the BMJ (also in 2016) all report significant differences in salary between male and female physicians.[1] The JAMA Internal Medicine article notes that gender disparities persist across a wide range of specialties. And the pay gap may start right out of residency: a 2013 study found significant gender disparities in the salaries of early-career physicians.

The evidence is compelling. But it will likely take more than data to transform medicine. Anti-discrimination laws are an essential tool that physicians can use to fight for gender equity. Physicians are protected by the Equal Pay Act, which requires equal pay for equal work, and Title VII of the Civil Rights Act, which prohibits sexual harassment and discrimination in pay and promotions. Physicians at academic medical centers may also benefit from Title IX of the Education Amendments of 1972, which prohibits gender discrimination, including harassment, at most universities. State and local laws also protect physicians from gender discrimination, and some, like the New York City Human Rights Law, are even more protective than their federal counterparts.

Each of these laws can form the basis of a gender discrimination lawsuit. But there are also other options for physicians seeking redress. Physicians can work with attorneys to file internal complaints with their employers and advocate for institutional reform. They can also meaningfully settle discrimination claims without filing a public lawsuit.

Importantly, many anti-discrimination laws contain anti-retaliation provisions. These provisions prohibit employers from firing, demoting, or taking other adverse action against physicians who raise concerns about gender discrimination. Even internal complaints—for example, to department heads, residency directors, or human resources departments—may be protected by anti-retaliation provisions.

Yet anti-discrimination and anti-retaliation laws are complicated. It takes experience to gather facts, formulate a legal theory, and develop and implement a negotiation or litigation strategy. Any physician who has suffered discrimination or wants to reform her or his institution should contact an employment discrimination lawyer before taking any action. Many attorneys will provide free consultations and agree to work on contingency.

The disparities in medicine are well-established and persistent. Armed with data and with anti-discrimination laws, physicians have an opportunity to bring #MeToo to medicine.[1] The BMJ article also reports significant disparities between black and white physicians. Racial disparities in medicine will be the topic of a future blog post.