Some things should be left unseen

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"In the workplace, the law requires that some things be left unseen."

That's the 6th Circuit, in a retaliation case that started with a groping complaint and ended with a pornographic slideshow.

Editorial illustration of an HR conference room with a board divided into Protected Activity and Not Protected. On the protected side, an employee points to a harassment complaint form. On the other side, an HR representative pulls a curtain over heavily redacted explicit photographs, emphasizing the line between protected reporting and unprotected workplace misconduct.
Gertrude Crisp, an EMT at the Scioto Ambulance District, had her own take on the place. "[T]he inmates run[] the insane asylum."

Crisp met co-worker Joshua Gullett in 2012, when both worked at the Portsmouth Ambulance Department. She says he commented constantly on her body, asked to see her breasts, and "jokingly" touched her even after she said no. Same for any woman who gave him attention.

Around then, another EMT showed Crisp and others naked photos of Gullett, allegedly from an adult website called Fetlife.

Both Crisp and Gullett later landed at Scioto. In December 2018, Crisp says that while on shift together, Gullett talked about her body, tipped over the recliner she was sitting in, and tried to stuff her into a trash can. She also claimed that he told her they were alone and nobody would hear her scream as he touched her breasts.

That same night, Crisp reported Gullett's actions to her supervisor. In response, the employer made sure the two never worked the same shift. Gullett faced no other consequences. Crisp figured complaining more was futile. She filed no legal claim. She did tell anyone who would listen that he was "a predator."

Four(!) years later, Crisp sat down at work with two new EMTs to talk about "EMS culture." She warned them about predatory men in EMS. Then she showed them nude images of Gullett and his wife, who by then was also a Scioto EMT.

Scioto's board investigated and unanimously fired Crisp for showing nude pictures of a co-worker to other employees while on duty. The board member who led the investigation called it "way over the top." The pictures weren't necessary to warn anyone about Gullett, he said, and they could have made everyone uncomfortable.

Crisp sued for retaliation under Title VII. She lost.

Warning co-workers about harassment is protected activity. So may be sharing explicit material with HR when it's necessary to support a harassment claim. The court acknowledged as much. But in this case, the photos weren't necessary to make her point, and the wife had nothing to do with the alleged workplace misconduct. An employee who mixes protected and unprotected conduct can't use the first as a shield for the second.

Crisp's complaint was protected. Her misconduct in showing the photos wasn't. Your job as an employer is to understand the difference before you fire or otherwise take an adverse action against anyone.