A simple case of a failure to investigate...

Cybulsky v. Hamilton Health Sciences, 2021 HRTO 213: a reminder of the duty to investigate

This recent case from the Human Rights Tribunal of Ontario illustrates how subtle forms of discrimination persist in homogeneous, male-dominated work environments. It’s also a helpful case for employment lawyers, investigators and HR professionals because it reminds us of how an employer’s duty to investigate gets triggered. 

The applicant in this case was a cardiac surgeon who had worked at Hamilton Health Sciences (“HHS”) since the early 1990s. From 2009 to 2016, she was the Head of the HHS Cardiac Surgery Service. During this time, she was the only female head of a cardiac surgery service in Canada. 

She was also the only female cardiac surgeon on her team. To convey how the applicant was isolated from her colleagues because of her gender, the Tribunal’s decision highlighted evidence that she was excluded from annual ski trips for members of the Cardiac Surgery Service - only men were invited.

Due to some “grumblings” coming from the Cardiac Surgery Service while it was headed by the applicant, a senior administrator asked a colleague to conduct a “review” to figure out what (or who) was causing problems. The applicant’s colleagues were interviewed as part of this review and some of them raised concerns about her leadership. The applicant was also interviewed.

Here’s an excerpt from the applicant’s interview:

One of the things I’ve learned in some of my reading is leadership programming is a challenge because leadership is a domain that has male traits: assertiveness, directness, problem solving, task oriented. Those are all things that go along with a male domain, and for a woman, they’re supposed to be nurturing and nice and fuzzy…

[There] is social science research that shows that women that exert those traits are seen as incompetent and lacking authority. And it is also shown …that successful women leaders are often not liked, and both by women and men, or are judged more harshly for the way they behave even though they are equally competent because it is not just anticipated. 

So I am in a domain of now seven [male] cardiac surgeons. All of the interventional cardiologists are male. All but one of the ICU west coordinators are male. I have a few more colleagues in anaesthesia who are female, but it is a male world where accepting a woman as a leader is just psychologically difficult and it’s not anything personal to do with cardiac surgery. I’m probably as guilty of it myself towards other women leaders and, to be viewed as someone that has traits that I think I have, can work against me.

This review culminated with a written report that included the information provided by the interviewees as well as several recommendations.

The report did not address the applicant’s concerns about gender discrimination.

After the review was completed, a new Surgeon-in-Chief was appointed to HHS. He wanted to help improve the Cardiac Surgery Service and address the issues that were raised in the review, including those regarding the applicant’s leadership. But during his first year in this role he never had a one-on-one meeting with the applicant to discuss her leadership. 

At the end of his first year, the Surgeon-in-Chief decided to solicit expressions of interest for the applicant’s role as Head of the HHS Cardiac Surgery Service. He made this decision partly because of the shortcomings in the applicant’s leadership abilities that were outlined in the review. 

After he made this decision, the applicant wrote an email to the HHS’ Human Rights and Inclusion Specialist in which she argued that the Surgeon-in-Chief failed to support her as a leader.

Near the end of her email, she wrote: 

I have read about challenges in leadership for women and I believe the bias against female leaders is accurate and has played a role for what has been happening in my case. 

There was some discussion with the Human Rights and Inclusion Specialist about conducting an additional review of the Cardiac Surgery Service and a mediation between the applicant and the Surgeon-in-Chief, but nothing happened. 

Based on this evidence, the Tribunal drew the following conclusions: 

[The human rights and inclusion specialist] never made any further inquiry with the applicant about the potential bias and barriers she experienced as a female leader in a male-dominated context.

[...]

[This] failure to consult with the applicant and investigate the gender bias and discrimination that the applicant raised in the context of her situation adversely impacted the applicant’s dignity and self-worth as a woman resulting once again in a breach of her Code rights.

The succinct allegation contained in the applicant’s email triggered the employer’s duty to investigate. But there was no investigation, no review, no mediation and no consultation. Her complaint was simply not addressed.

This case is a not-so-gentle reminder that when an employee raises these types of concerns - a supervisor engaging in acts of gender-based discrimination - something must be done.