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Medicolegal Sidebar

Avoiding Gender-based Inequities During Orthopaedic Training

O’Connor, Mary I., MD, FAOA, FAAHKS, FAAOS; Teo, Wendy Z. W., BA(Cantab), BM BCh (Oxon), LLM; Brenner, Lawrence H., JD; Bal, B. Sonny, MD, JD, MBA, PhD

Clinical Orthopaedics and Related Research®: June 2019 - Volume 477 - Issue 6 - p 1284–1287
doi: 10.1097/CORR.0000000000000786
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M. I. O’Connor, Director, Center for Musculoskeletal Care, Yale School of Medicine and Yale-New Haven Health, New Haven, CT, USA

W. Z. W. Teo, Senior Research and Writing Fellow, BalBrenner Law Center, Chapel Hill, NC, USA

L. H. Brenner, Attorney, Chapel Hill, NC, USA

B. S. Bal, Chief Executive Officer and President, SINTX Technologies, Salt Lake City, UT, USA

B. S. Bal MD, JD, MBA, PhD, 2000 E. Broadway #251, Columbia, MO 65201 USA, Email: balb@missouri.edu

A note from the Editor-in-Chief: We are pleased to publish the next installment of “Medicolegal Sidebar” in Clinical Orthopaedics and Related Research®. The goal of this quarterly column is to encourage thoughtful debate about how the law and medicine interact, and how this interaction affects the practice of orthopaedic surgery. We welcome reader feedback on all of our columns and articles; please send your comments to .

All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request.

One of the authors (MIO) certifies that she is a consultant on musculoskeletal healthcare disparities, and has received, during the study period, an amount of USD 10,000 to USD 100,000 from Zimmer Biomet (Warsaw, IN, USA).

The authors (WZWT, LHB, BSB) certify that they, or any members of their immediate families, have no commercial associations (such as consultancies, stock ownership, equity interest, patent/licensing arrangements, etc.) that might pose a conflict of interest in connection with the submitted article.

The opinions expressed are those of the writers and do not reflect the opinion or policy of CORR® or The Association of Bone and Joint Surgeons®.

Received April 04, 2019

Accepted April 04, 2019

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Introduction

High-quality investigative journalism [5, 11, 19] helped usher in the #MeToo era, resulting in a heightened sensitivity toward sexual abuse and harassment in the workplace. While the lay media’s initial focus centered around the pervasiveness of sexual harassment in Hollywood [5, 11], we’ve since seen similar reports purporting widespread sexual harassment in finance [15], athletics [3], and academic science, engineering, and medicine [16]. A 2018 Consensus Study Report on Sexual Harassment of Women, issued by the National Academies of Sciences, Engineering and Medicine, reported that it is “clear that sexual harassment is a serious issue for women at all levels in academic science, engineering and medicine” [16]. About 30% of women medical faculty members in the United States have reported sexual harassment, and many of whom have faced retaliation from their institutions or from those whom they accused [9, 10].

Sexual harassment and gender discrimination likewise are widespread in medical training, and even many more of these incidents go unreported owing to victims’ fears of the consequences of speaking out [13]. A 2014 meta-analysis of 51 studies related to harassment and gender discrimination found “a surprisingly high prevalence of harassment and discrimination among medical trainees that has not declined over time” with 59.4% of medical trainees having experienced at least one form of harassment or discrimination during their training [6].

The data regarding orthopaedics are just as disconcerting. In her inaugural address, Kristy L. Weber MD, the first woman president of the American Academy of Orthopaedic Surgeons, cited a 2018 survey that showed that more than 50% of women orthopaedic surgeons had experienced sexual harassment [22]. Orthopaedic surgery is the least diverse of all medical specialties. While the gender distribution in U.S. medical schools is nearly equal between men and women, orthopaedic residency programs are about 90% men [18]. Change is slow; women trainees accounted for 11.6% of US orthopaedic surgery residency programs during 2004-2009. That number increased to only 12.6% during 2009-2014 [24].

While the reasons for the underrepresentation are multifactorial, they are in part a function of the perpetuation of a work culture dominated by men, and a dearth of women mentors [2]. We must also acknowledge an avoidance strategy that seems to have recently taken hold among men working in the #MeToo era, as Seth S. Leopold MD noted in his recent Editorial in this Journal: “Apparently, many businessmen are declining to mentor women because they fear unsubstantiated accusations of sexual harassment being perceived as credible in the era of #MeToo. Inexcusably, the same phenomenon appears to have taken root in medicine” [14].

Anxiety related to minimizing exposure to allegations of gender discrimination and harassment is not limited to individuals—academic departments, their faculties, and residency programs are deeply involved in the training, hiring, and career advancement of women physicians. All these parties may face lawsuits from those who perceive that they have been treated unfairly at work because of gender.

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Legal Liability

Lawsuits alleging sexual harassment and gender bias, however, can be hard to prove. In the 2014 legal ruling, Shervin v Partners Healthcare Systems Inc., a woman resident in the Harvard orthopaedic training program challenged her academic probation, alleging gender discrimination and retaliation that diminished her job prospects [20]. The allegations referenced an executive committee member who had told a fellow colleague that [Shervin] “needs to get her head screwed on and realize that she is a woman in a man’s specialty” and “suck it up.” The jury ruled in favor of the residency program, and in upholding this verdict, the First Circuit US Court of Appeals remarked that while there is “a certain rough-and-tumble quality to the high-stakes world of academic medicine … the defendants’ conduct—though perhaps insensitive in some respects—did not cross the border into the forbidden realms of discrimination and retaliation” [21].

Shervin shows the difficulty in establishing causation between actions of the alleged harasser and the loss sustained by the plaintiff, and also in distinguishing between what is merely insensitive and what represents actionable discrimination in the eyes of the law. Despite institutional policies to address unprofessional conduct, it may still be difficult to draw the line between subtle sexism and illegal gender discrimination that can contribute to unequal opportunities. Well-intentioned physicians who are men may be concerned that casual jokes or comments could be misconstrued as harassment. And much has been made of Vice President Mike Pence famously commenting that he never dines with a woman alone, other than his wife—dubbed the Pence Rule [23].

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Avoidance and Discrimination

While the Pence Rule discourages men from interacting with women colleagues in order to avoid any hypothetical appearance of impropriety, the very-real fallout of this rule will accrue to women physicians, who will find it harder to develop professional relationships that can help advance their careers. Women residents may miss out on professional networks, informal teaching, and critical mentoring. To our knowledge, there is no current case law alleging differential training arising from gender discrimination in residency training, but the door is open to such claims. Specifically, the 2017 decision of the Third Circuit U.S. Court of Appeals, Doe v Mercy Catholic Medical Center, is timely and instructive on the subject of gender discrimination in residency programs [4].

In Doe, a woman radiology resident enrolled in a private hospital program that accepted Medicare payments alleged that the program director (a man) made unwanted sexual advances, ultimately dismissing her from the program when she did not return his overtures, and filed a complaint instead. The lawsuit was brought under Title IX of the Education Amendments of 1972, 20 USC § 1681, a federal law that protects individuals from discrimination based on gender in education programs or activities that receive federal funds. Title IX protections extend, for example, to recruitment, admissions, gender-based harassment, discipline, and retaliation for filing of complaints.

The district court ruled that Title IX did not apply to Mercy Catholic Medical Center because it was not an “education program or activity;” instead, Doe would have to rely on Title VII, a different federal statute that governs employment discrimination, and that would have made it more difficult for Doe to prove. On appeal, a unanimous Third Circuit held that a resident could bring a private claim for gender discrimination under Title IX, even against a private institution without academic affiliation [4].

The significance of the Doe ruling is that it opens up a clear pathway to file claims under Title IX for gender discrimination and sexual harassment during residency training. University of Illinois law professor Robin Wilson has commented that the Doe ruling is important enough that it is “going to be felt throughout the industry” [1]. Another law professor addressed the Pence Rule head-on [7], opining that if applied to workplace dinners, the Rule could be illegal labor discrimination under Title VII of the Civil Rights Act of 1964, a federal law that prohibits employment discrimination based, among other things, on gender.

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Proposed Solutions

In our view, unintentional gender discrimination, even if it is the result of deliberate avoidance strategies such as the Pence Rule, can lead to legal liability. To avoid such liability, residency programs should implement systemic measures to improve its work culture, including providing required training that addresses: (1) Unconscious bias; (2) the importance of team diversity, and (3) healthcare disparities.

Additionally, programs could take additional measures to mitigate the risk of allegations of harassment by (1) performing confidential surveys of their team members to understand the perception; (2) having leadership publicly state a commitment to diversity and inclusion; (3) stating the goals of the program and (based on survey results) addressing identified issues; (4) pledging zero tolerance for harassment; and (5) holding both leadership and team members accountable should harassment claims be proven true.

The above programs should also target long-term behavior. Saturated training, such as an intense 2-day seminar addressing sexual harassment may lead to initial increases in desired behaviors, but the learning quickly fades, generally speaking, with no enduring impact. Instead, a distributive approach, such as shorter programs spread over time that continually address the issue of gender discrimination may be more likely to have lasting effects. Training programs should include not only the knowledge of the legal implications of sexual harassment, but should foster development of a set of attitudes that promote harmony between the social values inherent in the antidiscrimination laws and a belief that sexual harassment is inconsistent with one’s personal social values. Program effectiveness should be critically measured with pre and posttesting endpoints. For example, what are the attitudes and the strength of the attitudes of the targeted audience prior to the program and following the program? What is the knowledge of the audience concerning legal exposure prior to the programs and after the programs? Such pre- and post-testing will allow institutions to measure whether attitudes are truly changing for the better.

Much like workplace bullying, a key factor in addressing negative conduct such as sexual harassment is that organizational authority acknowledges that it exists, takes the problem seriously, and shows a willingness to challenge it [8]. The Consensus Study Report from the National Academy of Sciences has also clarified that “the most potent predictor of sexual harassment is organizational climate—the degree to which those in the organization perceive that sexual harassment is or is not tolerated” [16]. As such, steps should be taken on an institutional level to have a rigorous, fair, and transparent review process for complaints that communicates to employees that every issue will be taken seriously, and that the complainant will be protected [17]. But departments must earn the right to make that promise. To that end, departmental leadership must build trust and positive relationships among their staff, including resident physicians. Even with the fostering and maintaining of such relationships, in these matters, oversight of department leadership by high level officials at the medical center should be seriously considered.

Formal mentorship programs can be created with the goal of promoting and channeling women into leadership positions, such as the Pipeline Protégé Program created by the American Society for Radiation Oncology’s Committee on Health Equity, Diversity and Inclusion [12]. Inter-institutional cooperation may also help; TIME’S UP Healthcare (https://www.timesuphealthcare.org/) is a network of healthcare professionals who are committed to creating a safe and healthy working environment that is free from harassment or gender discrimination. Another crucial measure to ensure gender equality in the medical field is to take active steps towards ensuring that women progress to leadership positions. With better representation at the highest levels, decisions that are geared towards gender equality are more likely to be made.

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References

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