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Call it the boss’s revenge. The Ohio Supreme Court recently held that just because a 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. 2007-Ohio-6442 (Ohio), has since popped up on the Web sites of numerous labor and employment firms and employee-rights firms. Plaintiffs’ lawyers fear that the ruling will open the door to more retaliation by companies, and will 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 in the Columbus, Ohio, office of Squire, Sanders & Dempsey. Aschenbrand said that too often she has been involved in cases in which workers are disciplined for performance issues, and they then file retaliation claims and falsely accuse bosses of discrimination or harassment just to cover up for their bad performance. 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 sought 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 at 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. On the defensive But Fred Gittes of Gittes & Schulte in Columbus, who filed an amicus brief in support of the plaintiff in the Ohio case, said that the “most troublesome part of the opinion is that it invites employers to retaliate.” He said the ruling will force employees to have to defend themselves just for exercising their right to file a complaint. Kelly S. Lawrence of Frantz Ward in Cleveland, who represented the defendant in the Ohio case, was unavailable for comment.

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