Orignally published on 2021-11-21 16:00:00 by www.thestar.com
“As a consequence of gender discrimination, I was prematurely removed from my leadership role,” she said in her successful application to the Human Rights Tribunal of Ontario (HRTO).
“Living with bitterness would be worse than the cost of pursuing what I believe is right,” she stated. “I hope my actions will help not only other female physician leaders at my workplace, but all physicians.”
Instead, she believes her removal in 2016 served as a warning that gender remains a barrier.
“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,” Laurie Letheren, vice chair of the tribunal, stated in her decision on March 18. “Unfortunately, this was not the applicant’s experience.”
“The role that her gender played in her experiences in the context of this male-dominated profession was ignored,” concluded Letheren. “This resulted in multiple breaches of her rights that as a woman, the (Human Rights) Code is to protect.”
Letheren’s decision doesn’t attempt to answer a number of questions raised during 26 days of hearings from 2017 to 2019:
- Did the seven male surgeons treat Cybulsky differently because she was a female leader or would the group be tough to lead no matter who was at the helm?
- What role did an ultimatum by a star researcher play in Cybulsky’s ouster? Dr. Richard Whitlock threatened to leave Hamilton if Cybulsky remained head of cardiac surgery. It left the leaders of HHS potentially choosing between a pioneering heart surgeon or a precedent-setting leader.
- Were the surgeons unhappy because they didn’t get their way on a number of unpopular decisions around hiring, referrals, a contract for a mechanical heart valve and how operating room time was allocated — some of which could affect their OHIP billings?
- What role did Cybulsky’s leadership style play? It was described by various witnesses as top-down, confrontational, bullying and dictatorial. Cardiac surgeon Dr. Lloyd Semelhago said his personality changed and his weight dropped 20 pounds from the stress of working under her.
- Did Cybulsky’s male bosses undermine her leadership by giving in too easily to the surgeons’ demands and unfounded complaints, which is what she suggested?
- Would she have kept her position if she was more accepting of criticism and willing to change her leadership style as HHS contended?
- Was the tension in the department any different from what would normally be found in a high-pressure specialized surgical unit?
At the end of the day, what really mattered to the tribunal was the failure of HHS and three of its leaders to take seriously Cybulsky’s claims that stereotypes and bias experienced by women in leadership roles could be affecting her situation.
“The applicant was a female leader in a male-dominated workplace,” stated the decision. “Her experiences cannot be separated from and should have been examined in this context.”
The case effectively ended the career of Hamilton’s only woman cardiac surgeon — the tribunal called her a “rarity” in her field at HHS.
“I have essentially become a pariah with no hope of ever working in a leadership capacity,” Cybulsky stated in her application to the tribunal on Sept. 5, 2016.
Cybulsky left medicine altogether in 2017 for law school at Queen’s University in Kingston, graduating in 2020. She represented herself during the hearings.
A payout to Cybulsky could be provided as compensation during a separate process to determine remedies, which has yet to be scheduled by the tribunal.
Although, Cybulsky’s application made it clear that leading cardiac surgery was never about the money — the stipend was less than two per cent of her clinical earnings.
“The head of service administrative position may only have contributed a minuscule fraction of my financial compensation, but it’s the first step into medical leadership, an area that women continue to be proportionately under-represented,” Cybulsky stated in her closing arguments submission to the tribunal in October 2019.
Instead, she brought the case forward to “restore process and accountability to the hospital administrative work environment, so that physicians like myself can be treated with dignity and respect they are entitled to and that their rights are respected,” Cybulsky said in her application. “Only then can I feel I have closure over this outrageous mistreatment of me.”
The tribunal remedies could include orders for HHS, such as developing human rights policies or additional training for staff.
“We are pursuing the highest standards on gender equity, and expect that many of the remedies that could be assigned by HRTO in response to its decision are now in place,” HHS said in a statement on Sept. 22.
Both HHS leadership and Cybulsky declined to be interviewed.
“Hamilton Health Sciences believes that everyone should feel welcome and supported in our workplace,” said the statement on behalf of the hospital network and three of its leaders — Dr. Michael Stacey, Dr. Helene Flageole and now retired Dr. Richard McLean. All were found to have breached Cybulsky’s rights in the handling of her allegations and complaints of gender discrimination.
The statement says HHS will not be seeking an appeal which isn’t an option anyway. There’s no right to appeal the tribunal’s decision which is considered final and binding.
HHS can put in a request for reconsideration under a limited set of circumstances or make a request for a judicial review to the divisional court, which would only be granted if the decision was deemed to be unreasonable.
“Since 2014/15, when the evidence presented in the hearing occurred, our hospital has continued to take steps and make progress creating an inclusive and discrimination free workplace,” HHS said in the statement.
Up until November 2019, HHS was also categorically refuting Cybulsky’s claims of gender discrimination to the tribunal.
The hospital network hired former chief commissioner of the Ontario Human Rights Commission and Toronto human rights lawyer Raj Anand.
He argued Cybulsky was replaced as head of service by a male surgeon because of her adversarial leadership style and inability to serve the best interests of the hospital.
Freedom of information documents obtained by The Spectator show HHS spent nearly $850,000 in legal fees as of April 7, 2020 rigorously defending itself and its leaders.
“Administrative and medical leaders working together have implemented important policies and processes that did not exist six years ago,” said HHS.
The hospital network provided a list of changes that have taken place since 2019 — years after the complaint was filed in 2016. Some have been since the decision in March 2021.
The changes include:
- creating a role for a medical director for gender equity in the department of surgery in spring 2021 with recruitment now underway;
- creating a workplace investigations specialist with expertise in human rights-based discrimination in March 2021;
- implementing a transparent and standardized process for physician leadership appointments in January 2019;
- implementing a gender identity and gender expression policy in May 2019;
- creating a process for continuously updating recruitment resources to emphasize equity and inclusivity starting in November 2020;
- providing leader training focused on implicit biases and the equitable application of all HHS policies starting in September 2020;
- instituting the president’s advisory council on equity, diversity and inclusion in the fall of 2020. Members include staff, physicians and community residents tasked with creating recommendations and an action plan to eliminate discrimination and assure gender equity.
“We will act swiftly to address any further remedies identified by the HRTO,” said the hospital network. “There is always more that can be done to ensure everyone who works at HHS feels valued and included.”
The case centred around Cybulsky being the lone woman in cardiac surgery at HHS for her entire career, going back to 1990 when she started fellowship training.
“In addition to interacting with all male cardiac surgeons, she interacted with interventionists who were all male; cardiac surgery trainees who were all male; ICU attendants who were all male,” stated the tribunal’s decision. “Only about a quarter of the anesthesiologists were female.”
She was described at the hearings as an outsider with limited ability to bond with the other surgeons.
“She gave the simple example of the fact that she had to change in a room that was separate,” the decision said. Another illustration was a yearly men’s only ski trip that was “so popular and so many wanted to attend at the same time that they had to arrange scheduling accordingly.”
The decision points out that McLean himself acknowledged “that the fact that she was a woman and those she was leading were men could be impacting her experiences.” At the time, McLean was executive vice president and chief medical executive.
Yet, gender was ignored in a 2014 review of the cardiac surgery department done by Flageole, who is chief of pediatric surgery at McMaster Children’s Hospital.
The review was initiated because of grumbling and dissatisfaction in the department as well as Whitlock’s threat to leave HHS.
Based heavily on complaints from the male surgeons, it was so critical of Cybulsky that parts of it were made confidential and even kept from her at first.
Secret audiotapes regularly made by Cybulsky provide evidence that her allegations of gender discrimination weren’t taken seriously in the review, the tribunal found.
“Successful women leaders are often not liked … or are judged more harshly for the way they behave even though they are equally competent,” Cybulsky told Flageole on May 9, 2014. “I am in … a male world where accepting a woman as a leader is just psychologically difficult.”
The decision states: “From the recording, it does not appear that Dr. Flageole acknowledged or responded in any way to these statements.”
“It was her position that what the applicant was raising was not right,” the tribunal concluded from Flageole’s testimony.
She didn’t believe that any of the criticism of Cybulsky was due to her gender, the tribunal took from her witness statement.
“The tribunal asked her how she had reached that conclusion,” stated the decision. Flageole’s “testimony in response was, ‘It never came up. I do not believe that there is male leadership style. There are different styles. There is the older top down — I am the boss you do what as I say — and there is a more modern style. But it is not about your gender.’ ”
Instead, Flageole testified that leadership was a “human thing” and that those with the “most emotional intelligence are the best leaders.”
An employment and human rights lawyer said Flageole’s testimony was likely one of the key turning points of the case.
“I would suspect that the adjudicator at the human rights tribunal would’ve been more than a little astounded by the assertion by the reviewer that leadership is not a gender thing but a human thing,” said Ed Canning, partner at Ross and McBride.
“I thought it was somewhat surprising to see a woman who has risen to the professional echelons perceiving leadership issues in our society as never being related to gender,” said Canning, who is also a columnist for The Spectator.
The “assumption by Dr. Flageole that gender is not a factor in the development or assessment of leadership styles is not neutral in its effects,” stated the decision. “It is likely to have a disproportionate impact on women occupying leadership roles in male-dominated workplaces as compared to men.”
Letheren cited a past tribunal finding that “it is an act of discrimination to fail to take seriously the applicant’s allegations about the relationship between gender and perceptions about her leadership.”
She found that “Despite the applicant having raised the stereotypes and biases faced by women in leadership and suggesting how these could be working against her in her situation, these factors are never addressed by Dr. Flageole.”
Ultimately, Letheren concluded Flageole failed to put the criticisms about Cybulsky in the context of her being a female leader in a male-dominated workplace.
“Dr. Flageole’s denial that gender stereotyping needs to be considered, prevented her from considering that much of the feedback she was receiving was tainted by the challenges specific to me becoming the first female to lead cardiac surgery — a male domain,” Cybulsky stated in her closing submission.
As a result, the review breached Cybulsky’s rights and HHS failed in its duty to ensure that any examination of her leadership would properly address gender in such a male-dominated workplace, the tribunal decided.
McLean was found to have breached her rights further by accepting Flageole’s conclusions despite the fact Cybulsky raised with him “that the challenges experienced by female leaders is ignored in the review’s report.”
Cybulsky’s rights were breached again when the flawed review was used as a factor in the decision to replace her as leader by Stacey, who was surgeon-in-chief at the time. He is now executive vice president academic and chief medical executive.
“When Dr. Stacey relied on Dr. Flageole’s report in making his decision, the applicant experienced further adverse treatment and this adverse treatment is connected to her gender,” concludes the decision. “Adverse treatment does not need to be intentional for it to result in a Code breach. What is to be considered is the effect of the decision on the applicant.”
The decision makes clear that it doesn’t matter if there were other factors that led Stacey to conclude Cybulsky “lacked the attributes of an effective leader.”
“Gender need only be a factor in the decision, not the only factor,” stated the decision.
Cybulsky wrote a letter of complaint about Stacey in September 2015 after being told “someone with a different set of skills” needed to take over leadership of the cardiac surgery department to bring the group together.
The matter ended up with HHS Human Rights and Inclusion specialist Jane Hastie getting an email from Cybulsky in December 2015 that included: “I have read about challenges in leadership for women and I believe the bias against female leaders is accurate and has played a role for what has been happening in my case.”
The tribunal decision said that email “triggered” a duty for HHS to investigate, which it didn’t.
“Ms. Hastie’s failure to consult with the applicant and investigate the gender bias and discrimination that the applicant raised in the context of her situation adversely impacted the applicant’s dignity and self-worth as a woman resulting once again in a breach of her Code rights,” stated the decision.
Cybulsky said in a statement in March that she was “pleased with the outcome.”
“I believe that I served as a role model for women who are entering the surgical fields, which are still very male dominated,” she said in her application. “Instead my removal will serve as a warning that gender does matter and the glass ceiling is still there.”