Sixth Circuit: Title VII Does Not Protect Workplace Misconduct Merely Because It Accompanies a Harassment Complaint
The Sixth Circuit recently issued an opinion concerning Title VII’s anti-retaliation protections: an employee who engaged in protected conduct but also violations of workplace policy cannot use the protected activity to excuse her unrelated workplace misconduct. In Crisp v. Scioto Ambulance District, the court affirmed dismissal in favor of the employer who terminated an emergency medical technician after she displayed pornographic photographs of two co-workers while on duty.
Background
Gertrude Crisp was terminated in 2022 after her employer’s investigation found that she displayed nude photographs of a co-worker and his wife to two other co-workers while on duty. Crisp sued for wrongful termination under Title VII and Ohio law, alleging that Gullett had sexually harassed her in 2018 and that her disparaging comments about him were justified by that prior conduct.
When Crisp had complained in 2018 about Gullett’s sexual comments about her body and unpermitted physical touching, the employer responded by separating the two employees and ensuring that they did not work the same shifts.
The Sixth Circuit’s Decision
The Sixth Circuit affirmed dismissal of Crisp’s retaliation claims. The court recognized that Title VII protects employees who complain about workplace discrimination and harassment. For example, Crisp could generally tell co-workers or management that she believed she had been sexually harassed by Gullett. However, Title VII’s protections are not unlimited. An employee is not protected when she violates legitimate workplace rules, disrupts the working environment, or interferes with the employer’s legitimate operational objectives.
The court held that Crisp’s display of nude images did not qualify as protected opposition activity. The images were not needed to convey her concerns about the alleged harassment, and showing images that included the co-worker’s wife was especially unjustified. The court emphasized that although Crisp’s verbal complaints about alleged harassment may have been protected, those complaints did not give her the right to display sexually explicit material in the workplace. The court also observed that Crisp had abandoned her hostile-work-environment claim and had not asserted a disparate-treatment claim alleging that similarly situated employees had engaged in comparable misconduct without being terminated.
Key Takeaways for Employers
An employee does not receive immunity from workplace rules merely because the employee’s conduct occurs during, or is connected to, a description of workplace discrimination or harassment. Employers may discipline unprotected conduct independent of protected activity, provided the discipline is based on misconduct rather than the underlying complaint.
Employers should review workplace complaints and any related employee misconduct as separate issues, carefully document the basis for disciplinary decisions, and ensure that protected activity does not influence those decisions. If you have questions about how this decision may affect your organization’s policies, investigations or disciplinary practices, please contact your Miller Canfield attorney or one of the authors of this alert.
Miller Canfield’s Employment and Labor Group helps employers manage workplace challenges, reduce risk and resolve disputes involving employment, labor, benefits and workforce issues. The team advises private and public employers on matters ranging from day-to-day counseling and workplace investigations to collective bargaining, complex litigation and trial.
