No More Tolerance for Covert Discrimination

January 11, 2022

Article by: Kate Jones

Previously printed in the LexisNexis Labour Notes Newsletter. 

Cybulsky v. Hamilton Health Sciences, [2021] O.H.R.T.D. No. 209 (Letheren) is a boundary-pushing case that shows a growing intolerance for sex or gender discrimination in the workplace, including covert sex or gender discrimination.

What Happened?

Cardiac surgeon, Dr. Irene Cybulsky, was the Head of Cardiac Surgery for a large Ontario hospital.  To add to this accomplishment, Dr. Cybulsky, was the only female Head of Cardiac Surgery in all of Canada and was leading a team of seven male cardiac surgeons.  In these circumstances, the Ontario Human Rights Tribunal (“OHRT”) noted:

One might have expected that having the only female head of cardiac surgery in Canada would be something that a teaching hospital such as HHS would want to celebrate.  Unfortunately, this was not the applicant’s experience …

Dr. Cybulsky was an outsider in the male-dominated cardiac surgery group.  Some members of the cardiac group logged complaints against her and raised issues regarding her communication style.  This led to a workplace review.  During the review, she was described as a “straight-shooter” but also as “a mother telling her children what to do” and a “bully”.  One surgeon suggested that Dr. Cybulsky “may need to just be a bit fluffier”.

Dr. Cybulsky reported her concern that her sex or gender as a female was working against her as a leader in a male-dominated workforce.  She referred to social science research which shows “leadership is a domain that has male traits”, including assertiveness and directness, and women who exhibit these traits are viewed negatively.

The OHRT found that the individuals overseeing the review process failed to consider the role that Dr. Cybulsky’s sex or gender played in the reports from her colleagues during the review process.  The OHRT stated, “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 review did not, however, take into account the fact that Dr. Cybulsky was a female trying to lead in a male-dominated environment.  The OHRT found this failure undermined her dignity.

In addition, the results of the review contributed to the Chief of Surgery’s decision not to reappoint Dr. Cybulsky as the Head of Cardiac Surgery.  Although there were many factors that contributed to this decision, Dr. Cybulsky experienced, in the OHRT’s view, adverse treatment based, at least in part, on her sex or gender.

Finally, the OHRT held that the hospital’s failure to investigate Dr. Cybulsky’s concerns about sex or gender bias and discrimination was in violation of the applicable human rights legislation.

Employer Considerations and Takeaways

  • This decision highlights an employer’s duty to investigate allegations of bias or sex or gender discrimination. This duty arises even when discrimination is not overt.
  • Employers are cautioned to consider the entire context when evaluating sex or gender discrimination in the workplace. If a female is working in a male-dominated environment, her experiences cannot be separated from the surrounding context.
  • There is an increasing awareness of the unique challenges that women experience in the workplace – challenges which go above and beyond the pay gap between genders.

 

Kate Jones is a lawyer at the Vancouver-based employment and labour law firm of Roper Greyell LLP.  She works in all areas of workplace law, including employment, labour, human rights and privacy law.  She can be reached at kjones@ropergreyell.com.  For more information about Kate and the rest of the Roper Greyell team, please visit www.ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.