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In a recent decision of the Human Rights Tribunal of Ontario, the Tribunal affirmed an employer’s obligation to investigate informal claims of unconscious bias and gender discrimination.
The applicant, Dr. Cybulsky was a cardiac surgeon and claimed she experienced discrimination with respect to employment because of sex/gender when she was Head of the Cardiac Surgery Service at Hamilton Health Sciences (“HHS”), a research hospital affiliated with McMaster University.
The Tribunal’s decision does not make any findings regarding discrimination in the Cardiac Surgery group itself. The Tribunal instead considered whether the applicant’s Code rights were breached because the hospital failed to consider and follow up regarding her concerns about gender bias:
- when a review of the Cardiac Surgery Service was conducted in 2014;
- when the Surgeon-in-Chief decided to invite others to apply for the Head of Cardiac Surgery Service position in 2015; and
- when the applicant communicated with the HHS Human Rights and Inclusion Specialist about her experiences.
Purpose of the Code is to Promote Substantive Equality
The Tribunal conducted its analysis considering the purpose of the Code which is to promote substantive equality. The Supreme Court of Canada has described substantive equality as, “going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law [or decision]” (Withler v. Canada (Attorney General), 2011 SCC 12 at paragraph 39).
The Review of Cardiac Surgery
The applicant was first appointed as Head of the Cardiac Surgery Service in July 2009. The Cardiac Surgery Service is a group of six to eight surgeons caring for patients who need open heart surgery or heart valve replacements and repairs. The hospital setting and cardiac surgery department in which the applicant worked was almost exclusively male and she was the only female surgeon within the surgical group.
In 2014, the hospital conducted a review of the Cardiac Surgery Service. During the review, the applicant raised the challenges of female leaders and the expectations around female versus male traits and behaviours. She advised those conducting the review that her being a direct and assertive female, terms that those interviewed during the review used to describe the applicant, are traits that women are not expected to have and could work against her.
Tribunal Finds Review of Cardiac Surgery Ignored Issue of Gender Bias
The Tribunal found that although raised by the applicant, the review and the resulting report failed to address the stereotypes and biases faced by women in leadership and failed to consider the challenges experienced by female leaders. The hospital violated the applicant’s rights by failing to consider the role her sex/gender played in the comments made about the applicant during the review, including conflicting allegations that the applicant was a bully and a poor communicator but also respectful, responsive, and considerate. Further, the hospital failed to respond appropriately when the applicant raised concerns that her gender could be a factor in the assessment of her as a leader. The Tribunal concluded that the applicant’s dignity was undermined by conclusions which were devoid of any gender analysis and the damage was compounded when those conclusions were accepted by the hospital.
New Surgeon-in-Chief Opens Competition for Applicant’s Head of Cardiac Surgery Role
Following the review of the Cardiac Surgery Service, the applicant was reappointed to the role. In August 2014, the hospital appointed Dr. Stacey as the new Surgeon-in-Chief. Dr. Stacey had no previous working relationship with the applicant or the hospital but was aware of the review and the tensions in the Cardiac Surgery group. He met with the applicant in September 2014 and then made some changes to create working groups within the group. He did not meet with the applicant or the working groups again until September 2015 when he met with the applicant and advised that he would be opening up the role of Head of Cardiac Surgery to other interested doctors.
Decision to Replace the Applicant as Head of Cardiac Surgery Partly Influenced by Gender Bias
The Tribunal heard evidence from Dr. Stacey regarding his decision to open up the position of Head of Cardiac Surgery to competition. He noted eight significant factors, one of which was the outcome of the review conducted in 2014. As the Tribunal found that that the review was conducted in breach of the applicant’s rights because it failed to consider gender bias, it further found that that a decision which took into account the flawed review was also a breach of the applicant’s rights. This was the case even though the review was only one consideration:
Having determined that HHS, Dr. Flageole and Dr. McLean breached the applicant’s Code rights in the conduct of this review, the Tribunal finds that when Dr. Stacey relied on Dr. Flageole’s report in making his decision, the applicant experienced further adverse treatment and this adverse treatment is connected to her gender. Adverse treatment does not need to be intentional for it to result in a Code breach. What is to be considered is the effect of the decision on the applicant: See Peel Law Association v. Pieters, 2013 ONCA 396 at para.60.
As well, gender need only be a factor in the decision, not the only factor. As the Supreme Court stated in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 48, “for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it.”
The Applicant Contacts Hospital’s Human Rights and Inclusion Specialist in Confidence
In December 2015, the applicant emailed the hospital’s Human Rights and Inclusion Specialist requesting a consultation regarding the behaviour of her superiors. She advised the Specialist that bias against female leaders may have played a role in what was happening to her and asked that their correspondence remain confidential. The applicant and Specialist met in consultation in January 2016 where they discussed the possibility of a mediation between the applicant and Dr. Stacey. A mediation never took place, and the Specialist made no further inquiry with the applicant about potential bias and barriers she experienced as a leader in a male-dominated context.
Duty to Investigate Triggered by Confidential Consultation
The hospital argued that the applicant never made a formal complaint or allegation of gender discrimination, and it was important that the human rights process be driven by the person raising the concern. The Tribunal disagreed and found that the hospital had a duty to investigate when the applicant raised workplace concerns regarding gender bias.
The applicant had no obligation to file a formal complaint to trigger the hospital’s duty to investigate. That duty was triggered when the applicant advised the Human Rights and Inclusion Specialist that she believed bias against female leaders had played a role in her situation. The hospital’s failure to investigate adversely impacted the applicant’s dignity and self-worth as a woman resulting once again in a breach of her Code rights.
The parties were invited to schedule a separate process to determine remedies.
Takeaways
Liability for employers under the Code can arise from both procedural and substantive breaches of the Code. This case is an example of where the Tribunal found the employer failed to meet its procedural obligations under the Code by failing to consider Dr. Cybulsky’s concerns regarding gender bias in the department review. This had a spillover effect on subsequent decisions that relied upon the review. The review was not conducted under the hospital’s discrimination processes. Nonetheless, the HRTO expected the hospital to consider gender bias in its processes.
The HRTO’s finding that the hospital breached the Code by failing to investigate after Dr. Cybulsky consulted the Human Rights and Inclusion Specialist in confidence is also concerning. Many employers’ discrimination processes require a formal complaint for further steps to be taken. In Dr. Cybulsky’s case, the Human Rights and Inclusion Specialist did not follow up on her concerns because Dr. Cybulsky did not start a formal complaint. The Specialist also did not obtain direction from Dr. Cybulsky not to investigate.
This case is a good reminder for organizations to:
- Educate decision makers regarding bias and Code protected grounds.
- Take seriously any concerns regarding bias in processes whether they are raised formally or informally.
- Revisit their complaint and investigation processes, particularly around concerns that are raised in confidence.
Prologue
According to an article on Toronto.com from December 2018, Dr. Cybulsky:
…no longer works at HHS and has moved away from Hamilton. She claims her career has been destroyed “with no hope of ever working in a leadership capacity.”
After more than 25 years as a cardiac surgeon, she is in the midst of switching occupations. Cybulsky is now in law school at Queen’s University in Kingston.