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Penticton IT firm discriminated against female employee: HRT

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January 16, 2021 - 10:36 AM

A South Okanagan woman who claimed she was bullied, harassed, and overlooked for a promotion during the eight years she spent working in a male-dominated environment at a Penticton IT company, has won parts of a Human Rights Tribunal case against the firm.

In a Jan. 12 B.C. Human Rights Tribunal decision, Tribunal Member Grace Chen ruled that Windward Software discriminated against Carole Loiselle because she was a single, unmarried woman.

However, Chen only accepted some of Loiselle's claims against her former employer and says she's failed to prove that she left the company due to its "toxic" and discriminatory work environment. 

According to the decision, Loiselle worked as an account manager at Windward Software from 2009 to 2017.

During this time the CEO and founder of the company, Dennis Jacobsen, slapped Loiselle on the hand on two occasions, while another colleague hit her on the bum with his keys, hit her on the head, and on one occasion put her in a headlock. She was also given a “love language” questionnaire to fill out. The company said it was part of a team-building exercise, but the Tribunal found it inappropriate.

The Tribunal also found that the physical incidents and the questionnaire amounted to discrimination against Loiselle by Windward Software.

The colleague who put Loiselle in a headlock – referred to as SM in the decision – said they had a “joking relationship” although he realized he’d overstepped his boundaries. He was suspended for three days following the incident.

However the CEO who slapped Loiselle on her hand twice, testified he would do it again if he knew the person would take it as a joke.

"He did not want to stop 'living life' because of a 'few sour grapes,'" reads the decision.

The Tribunal says this perspective is not acceptable today.

"I accept Mr. Jacobsen’s intention was that he was joking when he slapped Ms. Loiselle’s hand in 2014 and 2017 but his intent is not determinative of whether there was discrimination," Chen said in the decision. "Loiselle testified she felt confused, belittled, embarrassed, demeaned after the hand slaps.... physical contact at work is rarely appropriate."

The lengthy 73-page decision goes through very detailed day-to-day interactions Loiselle had in her largely all-male work environment and the power dynamics that existed.

Loiselle submitted that the discrimination was not overt or sexual harassment but that there was a "scent" of discrimination and there was a "rampant and imbedded culture of insensitivity" and obliviousness to gender power dynamics.

Windward argues some of the incidents were “were not that significant” because Loiselle didn’t report them at the time.

Loiselle claims she was treated differently from her male colleagues. She claims she was given more work but the men got the better clients, she was overlooked for a promotion and falsely accused of having performance issues.

Windward argued that Loiselle magnified incidents out of proportion with what actually happened and then made assumptions and rationalizations many years after she left her job.

Chen says that the intent of a person's behaviour does not negate the possibility of discrimination.

Chen analyzed multiple situations that took place over Loiselle’s eight years with the company, dissecting whether the behaviour can be classed as sexual discrimination or not.

“I wish to be clear that not all bullying and harassment will constitute sex discrimination simply because it was done by a man to a woman,” the decision reads. “My decision should not be taken to sterilize the work environment in a way where men should be afraid to have women in the workplace or feel afraid to interact with them in informal friendly ways.”

Ultimately, Chen found the physical altercations were sexual discrimination, as well as the questionnaire, but Loiselle failed to prove the reason she didn't receive the promotion was because she was a single female. She also failed to prove that she was unfairly dismissed due to discrimination.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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