This one seems like a no-brainer.  If you determine that an employee is behaving badly and you terminate him, you shouldn’t allow him back into the workplace.  But that is what happened in the case of Frias v. Spencer.

A Hispanic employee complained that an African-American manager yelled at her.  No action was taken by her African-American supervisors.  According to the employee, the manager then made her job performance difficult by yelling at her and criticizing her.  After other employees also complained of the manager’s conduct, the employer conducted an investigation and ended up issuing a warning.  The manager subsequently acted inappropriately to a supervisor, and the decision was made to terminate him.  At this time, the employer also hired a security guard (which seems to speak volumes…)  But the termination decision was then reduced to a suspension.

When the employee heard the manager was going to be allowed to return, she sent a letter to management, expressing concern about her safety.  The decision to terminate was then reinstated.

Five months later, however, the employee saw the manager back on the premises.  He was there as a volunteer. (?!!)  The employee then left work and did not return.  She filed an internal EEO complaint, explaining that she had experienced a hostile work environment, and the manager’s return was “the last harassment [she] could humanly, emotionally and physically endure.”  She further said that she had repeatedly told her supervisors that she was scared of the manager and did not want him to be around her workplace.

The employee also filed suit, and the employer asked the court to dismiss the claims, arguing that permitting the manager to return as a volunteer was not any kind of employment action on which a claim of discrimination can be based.  But there doesn’t need to be an employment action in a claim for a hostile environment – where the working environment itself is so objectively and subjectively hostile that is creates an abusive working environment.  Under the law, the employer is liable for failing to remedy or prevent a hostile work environment.

In this case, the court found that there was sufficient evidence to send the case to trial for a jury to determine if a hostile work environment existed.  The court found that the employee had presented many examples of how she felt threatened or harassed by the manager – sufficient to show a subjectively hostile environment.  Of particular note, the manager was allowed to return to the workplace even after his termination – which could allow him to continue his negative interactions with others, including the employee.

What the jury will decide is yet to be seen.  But as a practical matter, the employer is left with a difficult situation – trying to explain why it found the manager’s conduct sufficiently concerning to warrant termination, but then allowing him back into the workplace.  Really, if his conduct towards others was bad enough to result in his firing (and in the hiring of a security guard!), there doesn’t appear to be any rational basis for allowing him back at all.