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Getting ‘silent treatment’ isn’t adverse action

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in Employment Law,Firing,Human Resources,Leaders & Managers,Management Training

When someone gets fired because a co-worker complained about discrimination, other employees may get upset. Frequently, they don’t know the back story and may ostracize the employee who originally complained about discrimination. That’s especially true if the terminated employee was well liked.

However, courts generally won’t consider it an adverse employment action if workers give the complaining employee the “silent treatment,” avoid him during breaks or withdraw previous social invitations—as long as nothing else substantial changes.

Recent case: Ernesto Mendoza, who is of Mexican origin, worked for AutoZone. He complained to management that his supervisor criticized him for speaking Spanish and referred to Spanish-speaking customers as “your people” when talking to Mendoza.

AutoZone investigated and terminated the supervisor. Then Mendoza claimed his co-workers began avoiding him and made him feel unwelcome, presumably because they viewed him as the reason the supervisor was fired. However, Mendoza admitted that after some time passed, his relationship with the co-workers warmed and things were back to normal.

Still, he sued, alleging that the company was responsible for his co-workers’ poor behavior and that he had been punished for his complaint. Plus, Mendoza—who had been passed over for several promotions—blamed his lack of advancement on discrimination.

The court disagreed and said that such temporary ostracism isn’t the sort of thing that constitutes discrimination or retaliation.

The court also concluded, based on the employer’s explanation that Mendoza had a poor attendance and performance record, that he had been passed over for legitimate business reasons in favor of other employees who were better qualified. It dismissed the case. (Mendoza v. AutoZone, No. 3:08-CV-2321, ND OH, 2010)

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