By: Sari Feferman
A recent Human Rights Tribunal of Ontario (HRTO) decision, Cybulsky v. Hamilton Health Sciences supports a claim that unconscious gender bias is gender-based discrimination under the Human Rights Code.
The Applicant was a female cardiac surgeon and head of the cardiac surgery service at Hamilton Health Sciences. Complaints were made by members of the cardiac group about the Applicant’s leadership and communication style such as “bullying”, “micromanaging” and rudeness which prompted an internal workplace review.
In the workplace review, the Applicant raised her status as a woman in a male-centered unit and asked that the review take into account gender bias. However, the review did not incorporate gender into its findings. The review made recommendations, one of which was for the Applicant to undergo coaching in managing and navigating situations of conflict and working on leadership styles that allows consensus building.
The report of the review was later noted as a reason to not reappoint the Applicant as head of the cardiac service once her term expired. The Applicant filed a complaint with the Tribunal on the basis of gender discrimination.
The HRTO supported the Applicant’s claim of gender-based discrimination in relation to the perception of her as a woman in a male-dominated work environment. The HRTO concluded that the Hospital failed to adequately investigate and consider this context when the Applicant raised these concerns. However, they were not considered in the final report of the review.
The Adjudicator held that the Applicant’s experiences as a “female leader in a male-dominated workplace” cannot be separated from her role as a surgeon and a leader in the hospital. The review should have examined her role in this context as well. The Tribunal ultimately determined that, as a woman, the Applicant experienced a breach of her protected rights on the basis of gender.
The HRTO’s decision only related to the issue of liability. The appropriate remedies to be awarded to the applicant were dealt with in another matter.
The significance of this decision stems from the HRTO’s conclusion that the review failed to consider the role of gender-based discrimination and that this was a violation of the Human Rights Code, notwithstanding the fact that were no overt comments or complaints made about the Applicant’s sex or gender. It acknowledges unconscious gender bias and implicit discrimination and recognizes the role it plays in workplace culture and internal reviews. Employers and employees should consider that gender plays a role in a person’s experience as a leader in a male-dominated workplace that cannot be ignored (when evaluating leaders and/or taking internal action).
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