A recent Human Rights Tribunal of Ontario case addresses the issue of unconscious gender bias against a female leader in a male-dominated workplace, how that may impede career advancement if not countered, and the consequences of a failure to investigate concerns raised by female leaders.
The applicant was a cardiac surgeon and head of the organizational respondent’s cardiac surgery services from 2009-2016. She had worked there since the early 1990s. At the time relevant to the application, she was the only female head of a cardiac surgery service in Canada.
In early 2014, the interim Surgeon-in-Chief appointed another doctor to do a review of the applicant’s department because of “grumblings” and unhappiness from at least two members about how the department was being run and the applicant’s leadership style. After being notified, the applicant asked for details of any issues, and she began recording conversations she had. The interim Surgeon-in-Chief said he had never had any problems with the applicant and thought she had done a good job. He said she was not “a fluffy, hand-holding type” and suggested maybe the review would conclude she needed to “just soften her approach to people a bit”.
The applicant asked the reviewer what had prompted the review. The reviewer said she did not have the specifics. The applicant raised the stereotypes and biases faced by female leaders directly with the reviewer, specifically, how her being a direct and assertive female (traits she was described as having) could work against her as a female leader. These factors were essentially ignored by the reviewer who simply moved on to other topics.
In a final written report, there was a confidential section with comments from a “large group” about the applicant’s leadership and communication style ranging from “micromanaging” to “bullying” to “unfriendly” and “dictatorial”. The only recommendation in the report specific to the applicant was that her communication style needed improvement. When the Interim Surgeon-in-Chief met with the applicant to discuss the report, the applicant again raised the issue of the challenges of being a female leader and the fact that the reviewer had not considered the issue.
A new Surgeon in Chief was appointed. He relied on the review, at least in part, when he made the decision not to reappoint the applicant and to open her position to others. The applicant did not apply. This also prompted the applicant to send an email to a Human Rights and Inclusion Specialist at the respondents workplace, notifying her that she believed bias against female leaders had played a role in her situation. In the course of her involvement, the Specialist never asked the applicant about that statement in her email.
The applicant filed an application at the Human Rights Tribunal of Ontario alleging discrimination because of sex/gender contrary to the Human Rights Code.
What did the Tribunal decide?
The Tribunal determined that the respondents committed three separate breaches of the applicant’s Code protected rights. First and foremost, the applicant was adversely affected by the organization’s failure to properly consider the role that gender may have played in observations about her leadership in the review. This was a breach of her Code rights. The Tribunal said the organization had a “duty to ensure that anyone conducting a review of the applicant’s leadership, in the context of such a male-dominated workplace, would properly address the role that gender plays in perceptions of women in leadership roles”. The reviewer failed to place what was said about the applicant’s communication style or about her inability to bond with the other members, in the context of her being the only woman at the organization, and a female leader in a male dominated work environment. Second, the Tribunal determined that the Surgeon-in-Chief’s reliance on the flawed review was influenced by gender bias. According to the Tribunal, the review’s conclusions lacked any gender analysis and the damage was compounded when those conclusions were accepted by the Surgeon-in-Chief. As such, the applicant’s dignity was undermined. The final breach of the applicant’s Code rights occurred when the Specialist failed to consult with the applicant and investigate the gender bias and discrimination claims in her email.
The Tribunal is scheduling a separate process to discuss the appropriate remedies.
This case was decided in Ontario but the issue of gender bias is relevant in all Canadian workplaces.
This case is an important reminder for employers that the duty to investigate exists independent of a formal complaint. In this case, the applicant had no obligation to file a formal complaint to trigger the organization’s duty to investigate. When the applicant advised the Specialist that she believed bias against female leaders had played a role in her situation, the duty to investigate was triggered. Human rights jurisprudence has read the obligation to conduct an investigation into the right to equal treatment in employment under section 5(1) of the Code. The fact that an investigation was not conducted was a breach of the applicant’s Code rights.
This case also reinforces that adverse treatment does not need to be intentional for it to result in a Code breach. In this case, the fact that the respondents failed to consider the applicant’s gender in context and the fact that the flawed report was used to make the decision not to re-appoint the applicant, was sufficient for the Tribunal to conclude that the applicant experienced adverse treatment connected to her gender.
Finally, this case should remind employers of the impact of unconscious gender bias, particularly in the context of women in leadership roles. This case should prompt employers to look at ways to mitigate unconscious gender bias in the workplace.
If you need advice on this subject, please contact the author or your regular Fasken lawyer.
 Cybulsky v. Hamilton Health Sciences, 2021 HRTO 213