Written by Daniel Standing LL.B., Editor, First Reference Inc.
Many readers will remember the Bugs Bunny cartoons that featured an ostrich who would bury its head in the sand to avoid a predator or some other form of imminent danger. It turns out that ostriches do not really bury their heads in the sand to avoid problems, but the cartoon offers a nice analogy to the way the employer in Cybulsky v Hamilton Health Sciences, 2021 HRTO 213 (CanLII) handled one of its employees’ allegations of discrimination. In this case, the Human Rights Tribunal of Ontario considered the plight of a female leader in a male-dominated workplace who was effectively removed from her role without consideration of the broader context of gender in the workplace. The decision offers guidance to employers about how to treat allegations of discrimination and the importance of conducting an adequate investigation when employees raise such concerns. As will be seen, dealing with problems head-on is always preferable to burying one’s head in the sand.
At the time of her complaint, Dr. Irene Cybulsky was the Head of the Cardiac Surgery Service (“CSS”) at Hamilton Health Sciences (“HHS”), a research hospital affiliated with McMaster University. The CSS is described as a very busy unit consisting of between six and eight surgeons-all male-who performed almost 2,000 surgeries annually. Dr. Cybulsky was first appointed to her role in 2009, and her position was annually renewed until 2016. It is important to note that this was a highly male-dominated environment. Looking back to her start as a resident in 1990, Dr. Cybulsky was the only female cardiac surgeon in the CSS. On a national scope, she was the only female head of a cardiac unit, and she worked almost exclusively with males who occupied non-surgeon roles.
The workplace dynamic proved challenging for Dr. Cybulsky since it prevented the formation of intimate bonds between her and the other team members. For example, she had to change in a separate room, and was never included in the annual ”men’s ski trip.” She was considered an outsider.
In 2014, for reasons that were never fully disclosed to Dr. Cybulsky, the interim Surgeon-in-Chief, Dr. Reddy, ordered a review of the CSS. Dr. Reddy testified that he had heard grumblings about Dr. Cybulsky’s leadership style and wanted to get to the bottom of it. He told Dr. Cybulsky that “she may need to just be a bit fluffier” and that she needed to “maybe just soften her approach to people a bit.” He expressed hope that the review would help Dr. Cybulsky strengthen her leadership. The employer tasked Dr. Flageole, Chief of the Pediatric Surgery Service, to conduct the review. At their first meeting, Dr. Cybulsky told Dr. Flageole that she could be quite direct but denied ever being intimidating or overbearing. She described to Dr. Flageole how male-dominated the workplace was. She spoke of social science research that concludes that women who display traits that are typically seen in males as signs of competence and authority are often disliked by their peers. She suggested to Dr. Flageole that her inclination toward being an assertive, task-oriented problem solver could work against her as a female leader.
Dr. Flageole got to work and interviewed the remaining five cardiac surgeons. Their comments were not unanimously bad. In fact, one surgeon had some very good things to say about Dr. Cybulsky. The others were not so flattering. They described her leadership style as micromanaging, unfriendly, bullying and dictatorial. Dr. Flageole’s completed report made only one recommendation: that Dr. Cybulsky improve her communication style.
Dr. Cybulsky met with her superiors a few days after the report was finished. Again, Dr. Cybulsky raised her concern that the report failed to address the extensive literature on the challenges of being a female leader. Her superiors noted her concern but passed it off as insignificant “boy-girl stuff.” Whether she believed it or was towing the party line, we’ll never know, but Dr. Flageole testified that Dr. Cybulsky’s difficulties had nothing to do with gender. Rather, they showed a faulty leadership approach and the need for more emotional intelligence.
The Tribunal’s analysis
The Tribunal started its analysis by stating that applicants under the Human Rights Code must prove three things to make out a prima facie case of discrimination: that they are members of a group protected by the Code, that they suffered adverse treatment and that a protected ground under the Code was a factor in the alleged adverse treatment. The Code’s protection of substantive equality requires the Tribunal to look at the full context.
The Tribunal cited jurisprudence stating that the failure to proactively remedy adverse effects practices and policies that seem neutral at first is discriminatory. Recent cases also state that it is a violation of the right to be free from discrimination if a respondent fails to take appropriate steps to respond to a complaint of discrimination. Dr. Flageole failed to consider any of the negative comments she gathered about Dr. Cybulsky in the context of the highly male-dominated workplace. She ignored those concerns. She failed to take Dr. Cybulsky’s allegations about the link between gender and perceptions about her leadership seriously. This, according to the Tribunal, adversely affected Dr. Cybulsky by undermining her dignity.
The problems were compounded after a new Surgeon-in-Chief, Dr. Stacey, was appointed in August 2014. While his initial focus appeared to be on team-building and offering Dr. Cybulsky support, he let a year go by without ever meeting with Dr. Cybulsky to see how things were going. Instead, in September 2015, he told Dr. Cybulsky that her position was open to applicants, and that he wanted someone “with a different set of skills to take the group forward.”
The Tribunal acknowledged that while Dr. Stacey has the discretion to make this kind of hiring decision, by doing so without regard for Dr. Cybulsky’s concern and in strict reliance on Dr. Flageole’s report, he caused further adverse treatment connected to the applicant’s gender. The Supreme Court of Canada is clear: if gender is a factor leading to adverse treatment, it is discriminatory even if the employer has a list of other non-discriminatory factors that would have led it to the same result.
The third strike against HHS came in relation to Dr. Cybulsky’s interactions with its “human rights and inclusion specialist.” Contrary to her role, the specialist also failed to give due attention to the concerns that Dr. Cybulsky brought forward. The Tribunal was critical of the specialist’s reluctance to investigate in the absence of a formal complaint. The Tribunal stated that the duty to investigate was triggered when the applicant mentioned the role that she believed gender bias played in her situation. Human rights jurisprudence bears this out, having read an obligation to conduct an investigation into the right to equal treatment under the Code. According to the Tribunal, a failure to investigate a complaint of discrimination practically guarantees that it will continue; it shows that the employer tolerates a “culture of impunity.”
Since this decision dealt strictly with liability, the matter of remedy was saved for another day. In the end, HHS was responsible for three discrete breaches of Dr. Cybulsky’s human rights: in the way it conducted its review, in the decision to open her position to applicants by relying on the report and in failing to investigate her complaint.
This decision is a clear indictment of the employer’s failure to take a discrimination complaint seriously. While the remedy has yet to be determined, one can surmise that it will be significant, given the number of breaches and the applicant’s stature in the organization.
Not all complainants will be as capable and sophisticated as the applicant in this case, who was self-represented before the Tribunal. As the Tribunal stated, the duty to investigate exists independent of a formal complaint. In some cases, like here, the duty is triggered when an employee mentions a possible discriminatory effect. Other times, the employer could be expected to proactively fix situations that it should reasonably know are discriminatory.
In cases like this, much more than an employer’s financial liability is on the line. The affected employee’s dignity hangs in the balance. As this case illustrates, rather than burying their head in the proverbial sand, an employer should favour an approach that prioritizes due consideration of a complainant’s concerns. By implementing and following a fair and reasonable investigation process, an employer is far more likely to achieve a positive outcome.