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Call it the boss’ revenge. The Ohio Supreme Court recently held that just because the company sued an employee for making what it considered a bogus sexual discrimination claim, it wasn’t necessarily being retaliatory. The ruling, Greer-Burger v. Temesi, No. 2607-OHIO6442 (Oh. Sup. Ct.), has since popped up on the websites of numerous labor and employment firms and employee-rights firms. Plaintiffs lawyers fear the ruling will open the door to more retaliation by companies, and have a chilling effect on workers’ ability to report abuses. Management-side attorneys, however, believe the decision provides welcome relief for employers from the recent explosion of retaliation suits. “Retaliation seems to be the claim of the decade and this decision is a welcome relief for employers,” said Tara Aschenbrand, a management-side attorney at the Columbus, Ohio office of Squire Sanders & Dempsey. Aschenbrand said that too often, she has been involved in cases where workers will be disciplined for performance issues, and the employees will file retaliation claims and falsely accuse bosses of discrimination or harassment just to cover up bad performance problems. “They think they can’t be touched, and I’ve seen it happen” Aschenbrand said. An advisable action? In the Ohio case, a woman filed a sexual harassment suit in 1998 against a jewelry store, but lost before a jury. The employer then sued the employee claiming abuse of process, malicious prosecution and emotional distress, and sough compensatory and punitive damages. A judge with the Ohio Civil Rights Commission held that the employer’s lawsuit was retaliatory. An appellate court agreed, but the Ohio Supreme Court overturned the rulings. “The filing of a lawsuit by an employer against an employee or former employee who has engaged in a protected activity is not per se retaliatory,” the court wrote in its 4-3 ruling. “If an employer can demonstrate that a lawsuit against an employee who has engaged in a protected activity is not objectively baseless, the suit shall be allowed to proceed”. But just because a court says this type of lawsuit is permissible, doesn’t mean it’s advisable, said Ashley Brightwell, a management-side attorney with Atlanta’s Alston & Bird. “I think it highlights the fact that employers do have some options if they are the subject of repeated baseless lawsuits, or the subject of a lawsuit that resulted in some serious reputational damage to the employer,” Brightwell said. “Then it may be a good option under those circumstances, but it’s an option that needs to be used very sparingly.” Kenneth Stein, of New York’s Ford & Harrison, went a step further, saying he would tell clients to simply stay away from filing a countersuit similar to the one in Ohio. “Not only is it expensive and the chances for recovery are slim, but if you recover, it may be really bad publicity for you,” Stein said. “Imagine that an employer recovers and takes an employee’s home and leaves them penniless on the street, or forces someone into bankruptcy � I’m not sure that’s the kind of image a company would want to have.” An invitation Plaintiffs lawyers, meanwhile, fear the Ohio ruling will set the stage for even more retaliatory lawsuits by employers. “The most troublesome part of the opinion is that it invites employers to retaliate,” said Fred Gittes, of Gittes & Schulte in Columbus, Ohio, who filed an amicus brief in support of the plaintiff in the Ohio case. Gittes said the ruling will force employees to have to defend themselves just for exercising their right to file a complaint. What he found especially troublesome about the Ohio case was that the defendant waited until after the employee lost at trial to countersue. He said if the employer really thought the claim was frivolous or an abuse of process, “he should have raised it in the lawsuit.” “By waiting, he’s forcing her to go through a whole separate proceeding and get a lawyer,” Gittes said, adding: “Employees are always worried about retaliation,” Gittes said. “This case doesn’t make it any better.” Kelly S. Lawrence, of Frantz Ward in Cleveland, Ohio, who represented the defendant in the Ohio case, was unavailable for comment.

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