Weilers LLP

Employers: Do Not Imitate the Ostrich

Employers: Do Not Imitate the Ostrich

June 15, 2021

By Brian Babcock

Discrimination can affect anyone. A recent Ontario Human Rights Tribunal decision involving a cardiac surgeon illustrates this, while making the more general point that employers have a duty to investigate complaints, independent of the merits of the complaint. After all, how does the employer know if they have a problem without investigating?

A failure to investigate is a breach of the Ontario Human Rights Code, is discrimination, and may lead to a remedy. Acting like an ostrich, head in the sand, is no longer acceptable. It will not protect you any more than it does an ostrich.

Cybulsky v. Hamilton Health Sciences  involved a surgeon who was head of the cardiac surgery service, but was replaced. She communicated with the hospital’s Human Rights and Inclusion Specialist about her experiences in a male dominated workplace. She was the only female cardiac surgeon on staff. She suggested that those in decision making roles had bias about women in leadership roles. Her concerns were acknowledged, and a senior executive even agreed that her gender might have impacted her situation, but her concerns were not acted upon.

After an extensive hearing, the Tribunal determined that the hospital, in addition to failing to treat the complainant properly, breached the Ontario Human Rights Code by failing to investigate and address systemic bias.

The decision to replace the applicant came after a review of the service. That review brought out comments including an observation by a female anaesthetist that the applicant was not respected because she was female. There were complaints that she was a bully or that members of the team felt bullied by her. Most of those interviewed in the review complained that that applicant had a direct abrupt communication style; unfriendly body language; and acted “like a mother telling her children what to do.”

Up to that last quote, you might think, “like almost every surgeon I have ever met.” But the “mother” reference suggests something else was going on.

The review resulted in two documents – a “confidential” version filled with personal criticism of the applicant and a  “public” version which was sanitized – making generic comments about the applicant’s difficulty in communicating effectively.

After the review, the applicant met with senior management. She was not given a copy of the confidential report. During the meeting, she complained that the report did not address the challenges of women in leadership roles.

At the hearing, one of the senior male doctors in management admitted that gender discrimination still exists in medicine. The report’s author, a female doctor, did not agree that some of the complaints were because the applicant was a woman and the others were male.  She attributed the criticism to a ‘top down’ management style.

The Tribunal was critical of the failure of the report, and of the Hospital, to address the applicant’s concerns about gender discrimination, in particular that there remain different expectations around female versus male traits – that a direct and assertive female defies these expectations, and thus those traits work against her.

The review, and the report, should have addressed these issues.

Failing to consider the role that the applicant’s gender played in looking at the context of the review was a violation of the Code.

The Human Rights Code is not simply a means to address individual complaints. It is intended to “transform social relations and institutions to secure substantive equality in practice.”

This means that employers are required to act pro-actively to monitor workplace cultures; take measures to ensure equality to identify and remove barriers; and to remedy circumstances where barriers exist even if they appear neutral on their face.

To accomplish this, employers must respond to allegations of discrimination. Failure to do so undermines the dignity and self-worth of the complainants.

Ultimately, the report did not lead directly to the complainant losing her position – that was the result of a later decision by the Chief of Surgery. However, he relied upon the report as a factor in his decision, so the decision was tainted by the breach.

Gender goes not need to be the ONLY factor in a decision for it to be discriminatory – it merely needs to be a contributing factor. Generally, once the discriminatory factor is found to be part of the decision, the existence of other factors just affects the choice of remedy.

After being informed that she would lose her position, the applicant went to the Human Rights and Inclusion Specialist with her concerns. That person did nothing to investigate these concerns, claiming in evidence that no specific event was referred to that required investigation.

The Tribunal points out that there is no requirement for there to be a formal complaint to trigger a duty to investigate. The applicant’s expressing concern about a bias against females in leadership roles ought to have triggered an investigation. Failure to do so is another breach of the Code.

This decision, involving a sophisticated employer with experts on staff, is an important warning and wake up call to employers generally that the Tribunal will not tolerate discrimination in the workplace, and that all employers must take pro-active steps to prevent discrimination, not just by responding to individual complaints, but by working to foster a healthy workplace. Failure to do so will lead to penalties.