When Tammy Greer-Burger took her former employer to court for alleged sexual harassment, she probably didn’t expect him to counter with a legal punch of his own and that the court would stand in his corner. Now the question is: Did this bout of dueling lawsuits end in a draw, or did employers gain the upper hand?

The Ohio Supreme Court ruled in Greer-Burger v. Temesi in December 2007 that employers can sue employees without fear of being accused of retaliation. The court held that “an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in protected activity.” It stated that it was balancing “the statutory right of an employee to seek redress for claims of discrimination without retaliation against the constitutional right of an employer to petition courts for redress.”

In other words, it’s now a fair fight: A company that sues an employee who filed but lost a discrimination suit is not necessarily being retaliatory and should be allowed to prove its suit has merit.

“[The ruling] levels the playing field a bit,” says Nicole Monachino of Jackson Lewis in Cleveland. “Now employers have the ability to gauge the merits of their case on the circumstances instead of having a flat-out prohibition against these types of claims. … But in no way does the decision preclude employees from bringing claims against their employers.”

“It’s an interesting reconciliation of competing legal principles,” says David Kadue, a member of Seyfarth Shaw’s Los Angeles office.

Claims of Retaliation
In 1998 Greer-Burger filed a sexual harassment suit against her former employer, jewelry-store owner Lazlow Temesi. A jury found in favor of Temesi, who then filed suit against Greer-Burger seeking to recover the $42,334 in attorneys fees and costs incurred defending the harassment suit, plus compensatory and punitive damages. Greer-Burger filed a charge of discrimination with the Ohio Civil Rights Commission (OCRC), claiming that Temesi’s lawsuit was retaliation for her sexual harassment suit. The OCRC found that Temesi’s lawsuit was prohibited retaliatory conduct and ordered Temesi to drop the suit. The 8th District Court of Appeals upheld that decision.

But the Ohio Supreme Court disagreed. “The right to petition one’s government for the redress of grievances is enshrined within the First Amendment to the United States Constitution,” the court said. It rejected the notion that Temesi’s act of filing suit was “per se retaliatory” and said Temesi “must be afforded an opportunity to show that there is an objective basis for his lawsuit.”

The court warned that the OCRC decision “has the potential to give employees a carte blanche right to file malicious, defamatory and otherwise false claims.”

Plaintiffs’ employment attorneys worry that the Ohio decision will discourage employes from filing discrimination charges.

“Our biggest concern is that [the decision] will permit employers to file retaliatory lawsuits, which will force employees to have to defend themselves for simply exercising their right to file a complaint,” says Frederick M. Gittes of Gittes & Schulte, who filed a brief in support of Greer-Burger on behalf of the Ohio Employment Lawyers Association and the Committee Against Sexual Harassment.

Yet Greer-Burger’s attorney, Mark Katz, partner in Ulmer & Berne says, “It just makes [the employee] jump through one more hoop.”

But Kadue says the Ohio court “came up with a very sensible solution: Before the [OCRC] shuts down a case again, the commission has to look into the facts and make a judgment as to whether there’s some basis for the lawsuit.”

Ultimate Impact
While employment defense attorneys welcome the ruling, they don’t anticipate clients stampeding into court to file secondary suits against employees.

“The abuse of process cause of action has been around for 75 years. It allows people to sue people if they abuse the legal process,” says Craig Annunziata, managing partner of Fisher & Phillips’ Chicago office. “Sophisticated employers know that the more money they pour into litigation, the more it’s going to cost them in the end because the employee doesn’t have [many assets].”

Most employers, he notes, understand there are better avenues to take. “Most of these cases never get to trial,” Annunziata says. “They’re thrown out by the EEOC, or by county commissions.”

Bruce Elfvin of Elfvin & Besser, a former assistant general counsel at the EEOC, agrees. “It is my belief that this ruling will end up applying to a very narrow range of cases,” he says. “There are only a few circumstances where a company counsel would advise or even want to consider a secondary lawsuit.”

At the same time, most agree that the ruling does not weaken a worker’s right to sue an employer, provided that his or her claim is not frivolous.

“If the employee has a good-faith belief that they [were discriminated or retaliated against] then this decision should not impede their ability to bring such a claim to court,” Monachino says. “They have a right to do so under the Ohio Civil Rights Act and under federal law as well. They have the same protections they had prior to this decision.”

Annunziata says, “The ruling gives judges a reason to say, ‘The employer was ticked off, but it’s not retaliation because the underlying suit was frivolous.’ But the jury will be out for a while as to whether this decision has any major impact.”