Unconscious Gender Bias is Discrimination says HRTO

In a seminal decision released on March 18, 2021, the Human Rights Tribunal of Ontario has issued a finding supporting a claim of gender-based discrimination in relation to the unconscientious perception of the applicant as a woman and the gender bias which was inherent in her male-centred workplace (Cybulsky v. Hamilton Health Sciences, [2021] O.H.R.T.D. No. 209, 2021 HRTO 213).

The Applicant was a cardiac surgeon and head of the cardiac surgery unit at the employer health care organization.  Complaints had been made by members of the cardiac group about the Applicant’s leadership and communication style which had prompted a workplace review. Complaints ranged from “bullying” to “micromanaging” to “lack of communication skills and sometimes rudeness”.

During the course of the review, the Applicant indicated that the review needed to consider the impact of her status of being a woman in an otherwise male dominated unit.  The Applicant stated that gender bias was a relevant factor to consider. Notwithstanding, the final report did not incorporate gender into its findings.  When the Applicant took issue with this omission, no investigation was conducted.

The outcome of the review was a report which inter alia recommended the Applicant be provided coaching in the area of delivery and navigating situations of conflict.  The report was then relied upon as one reason not to reappoint the Applicant as the head of the cardiac group upon expiry of the term.

She filed a complaint of discrimination with the Tribunal.

Notwithstanding the fact that there were no overt comments about the Applicant’s sex or gender, the Tribunal found that the failure to consider the role of gender discrimination was a violation of the Human Rights Code.  The lack of overt comments did not bar a finding of discrimination.  It was an act of discrimination.  Further, it concluded that the health care organization did not comply with its duty to investigate when the Applicant raised concerns with gender bias with respect to the review and these concerns were not considered in the final report.

Adjudicator Laurie Letheren wrote:

The Tribunal considered whether the applicant’s Code rights were breached when a review of the Cardiac Surgery Service was conducted; when the Surgeon-in-Chief decided to invite others to apply for the Head of Cardiac Surgery Service position; and when the applicant communicated with the HHS Human Rights and Inclusion Specialist about her experiences. The applicant was a female leader in a male-dominated workplace. Her experiences cannot be separated from and should have been examined in this context. The applicant suggested to those in decision-making roles that the stereotypes and bias experienced by women in leadership roles could be impacting her situation. The Executive Vice President and Chief Medical Executive at HHS acknowledged that the fact that she was a woman and those she was leading were men could be impacting her experiences. Unfortunately, however, the role that her gender played in her experiences in the context of being a female leader to entirely male colleagues was ignored by the respondents responsible for the decisions they made and the actions taken in each of the instances examined by the Tribunal. The Tribunal has determined that as a woman, the applicant experienced a breach of her Code protected rights in each of these instances.

To have recognition, of what has been recognized in the literature on gender studies for a long time, is certainly refreshing.  Women are expected to behave and act within a certain set framework of expectations; when they do not, people are uncomfortable.  Here the other members of the team complained.  This decision shows an opening to unconscious gender bias and presumably racial bias complaints even where nothing overt has been communicated about the protected criteria, if the source of complaint is actually connected to the protected ground.