Retaliation claims have long been some of the most difficult for employers to defend. What’s more, they become nearly impossible to avoid once employees engage in protected activity; almost any decision an employer makes after that point – short of pay increases and promotions – may prompt a disgruntled employee to challenge the decision as an act of retaliation. A recent Ohio Supreme Court case, however, provides some comfort to employers in this difficult area of the law.

On December 12, 2007, the Ohio Supreme Court held in Green-Burger v. Temesi, 2007-Ohio-6442, that it is not per se – or automatically – retaliatory for an employer to file a lawsuit against a current or former employee after the employee engages in protected activity. In its first consideration of the issue, the Court held that “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.” Even more importantly, the Court ruled that, “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,” and any attempts by the Ohio Civil Rights Commission (OCRC) to pursue a retaliation case against the employer will be stayed.

Temesi stemmed from a jury verdict for the employer after trial on an employee’s sexual harassment claim. Following the verdict, the employer filed a separate lawsuit against the employee for abuse of process, malicious prosecution, and intentional infliction of emotional distress and sought compensatory and punitive damages.

In response to the lawsuit filed against her, the employee filed a charge with the OCRC. Without any investigation and based solely on the employer’s decision to file suit after the employee engaged in protected activity, the OCRC ordered the employer to cease and desist prosecuting the suit and to pay the employee’s attorney fees related to the employer’s suit. The employer appealed but lost before the appeals court, which reasoned that R.C. 4112.02(I) “essentially creates an absolute privilege for the filing of a discrimination suit or charge . . . so [the employer’s] filing of a suit was retaliatory.”

The Ohio Supreme Court rejected this reasoning. Instead, it found that the employer’s mere filing of lawsuit does not, without more, amount to evidence of intent to retaliate. Rather, in such circumstances, the employer must be given a chance to show that it has “an objective basis for [the] lawsuit” by proving that a genuine issue of material fact exists. Ifthe employer makes this showing, the employer may proceed with the lawsuit, and the OCRC action must be stayed.

Although this decision supports employer rights to file counterclaims against employees even after they engage in protected activity, caution is still a sound policy. The Court’s opinion leaves the door open for employees to assert retaliation claims that challenge employer motivations for bringing suit, and, as employers know all too well, even meritless claims can be time-consuming, expensive, and distracting.