BC Human Rights Tribunal releases findings in case of Penticton woman alleging workplace harassment

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The B.C. Human Rights Tribunal has found that some of a Penticton woman's complaints of workplace bullying and discrimination based on her sex during her time as a Windward Software employee have merit, but that it wasn't part of an ongoing discriminatory work environment aimed at pushing her out. 

Carol Loiselle filed a complaint in 2018 against Windward Software Inc, alleging "discrimination in the area of employment based on sex and marital status" during her time working there that ended October 2017.

In a decision published Tuesday, tribunal member Grace Chen wrote that Loiselle's allegations against her former employers could be separated into two categories: Allegations that she was treated differently than male peers by superiors, and allegations that male colleagues bullied and harassed her, sometimes physically. 

After a hearing, Chen found Loiselle had proven discrimination on three allegations, but did not find that she had been "constructively dismissed due to a discriminatory work environment."

Loiselle became an account manager at Windward Software in 2009, joining a mostly male staff. She alleged various male colleagues and superiors "discredited her ideas in meetings," "hit her on the buttocks with keys and put her in a headlock," and "struck her head with his hand," among other alleged hostile incidents during her time at the company, before leaving in 2017 on medical leave, never to return. 

Chen wrote in her decision that she believes Loiselle's account of many of the incidents. Some of the employees' names are referred to only as initials as they were not called as witnesses.

"I accept the headlock occurred. I accept B.A. witnessed the incident and told S.M. to stop. I accept Ms. Loiselle, when asked about her hair, told [Kevin Schilter, sales manager at the time and current Windward director] about the incident. While Windward could have followed up with SM about his conduct, I cannot conclude that the circumstances required further action for this single act that SM was told to stop."

Loiselle also alleged that while another female colleague was away on extended leave, she was required to work on her clients without earning commission and her male colleague, Steve Sterry, did not have to do the same. But Chen concluded based on testimony that Loiselle was "likely mistaken" about her beliefs regarding the commission and what Sterry was also working on at the time. 

Chen also noted there is "no dispute" that SM hit Loiselle in the head in February 2014. 

"Ms. Loiselle testified she was heading out for lunch. She saw SM approaching, put her head down, and waited for him to pass. She felt him hit her in the forehead with his hand. Her head went back. She was in shock. She held her face and stood up against the wall. She asked him “What the hell did you do?” SM said she was lucky he did not hit her nose," Chen wrote. 

"Ms. Loiselle says she suffered a herniated disc in her neck as a result of the force although WorkSafeBC did not accept her claim for a physical injury arising from this incident."

But security camera video of the incident did not convince Chen that Loiselle's memory was serving her correctly. 

"The video is inconsistent with Ms. Loiselle’s evidence about her reaction. The video does not show her being stunned after the impact or her holding her face up while being up against the wall in the hallway. The depicted contact is brief and she keeps walking towards reception. It does not show her stopping or being stunned," Chen wrote. 

SM received discipline in the form of an unpaid three-day suspension but Loiselle was not made aware of the full extent of his discipline.

Then, in October 2015, Loiselle said Schilter, then a sales manager and now a director with Windward, sent her a "love languages" questionnaire over email, which she found inappropriate. 

Loiselle also alleged Windward CEO and founder Dennis Jacobsen slapped her hand on two occasions. He sold Windward prior to the Tribunal hearing. 

In late 2017, a series of meetings preceded Loiselle leaving the company for good. She testified that two male superiors brought up what she claimed were "disingenuous" problems with her work and threatened to take away clients if she did not improve.

"I accept Windward’s concerns were genuine. This makes sense because Ms. Loiselle did not have much computer experience when she started working at Windward and she testified she learned it on the job by asking people questions," Chen wrote. 

Once all evidence and testimony was collected, Chen did not determine that there was an ongoing discriminatory work environment that led to Loiselle leaving the job. 

She did, however, conclude that Loiselle had proven discrimination based on her sex and/or marital status in the incident of Jacobsen slapping her hand, Schilter giving her the love questionnaire and SM hitting her with keys, putting her in a headlock and hitting her on the head.  

"I find she has not proven discrimination for the other allegations in her complaint ... I find she has not proven she was constructively dismissed due to discrimination," Chen wrote. 

"The parties will provide their written submissions on remedy to the Tribunal. The parties may also wish to also take advantage of the Tribunal’s mediation services to try to resolve remedy by mutual agreement."