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The Ohio Supreme Court ruled in December that bosses can sue employees for bringing frivolous workplace discrimination lawsuits. To get a handle on whether or not this is a trend we might start seeing more of, CCH conducted an interview of Joel Rice, an attorney in the Chicago office of Fisher & Phillips.
The case began in 1998 when Tammy Greer-Burger sued her former boss, Laszlo Temesi, an owner of a jewelry store, for sexual harassment in state court. After a jury ruled against her, Temesi countersued for $42,000. He brought claims for malicious prosecution, abuse of the process and intentional infliction of emotional distress. An administrative law judge for the Ohio Civil Rights Commission dismissed his claims on the ground that they were unlawful retaliation. In fact, he was ordered to pay her legal fees to defend his countersuit. However, the Ohio Supreme Court said he should have the chance to demonstrate that her suit was frivolous. They sent the case back to the civil rights commission (Greer-Burger v. Temesi, Supreme Court of Ohio, No. 2006-1616 (12/12/07)).
When describing the concept of “frivolous” in this instance, Rice said, “The fact that the employee may lose does not make a lawsuit frivolous.”
When should such a suit be filed? “It's going to be an unusual situation when such a countersuit is warranted from a practical perspective,” explained Rice. “The employee's suit should be particularly frivolous accompanied by clear evidence that the employee didn't believe in his or her claim. The employee should also have resources that are worth pursuing—for example, the means to cover any litigation costs the employer incurred plus any damage to the company’s reputation.”
“I am not surprised by this ruling,” said Rice. “I thought the Supreme Court’s decision made sense. The Supreme Court struck the right balance. A countersuit for a frivolous lawsuit could be brought, but only on an objectively reasonable basis.”
Will we see more cases like this? The ability of an employer to sue an employee is not found only in Ohio. “Unless the state civil rights agency has specifically prohibited the employer from bringing suit on the ground that it is retaliatory, the employer has a right to do so just as any other citizen,” clarified Rice.
However, Rice does not expect to see a growing number of employers doing so, saying, “It’s unlikely for a number of reasons.”
“Any suit by the employer will likely invite a countersuit for retaliation, which is costly for the employer,” Rice explained. “Not only is it likely that a countersuit will be brought, but most employees do not have enough assets to make a countersuit by the employer worthwhile. Also, litigation against a former employee could damage the morale of existing employees.”
A potentially powerful deterrent. It’s clear that there are many reasons employers aren’t going to start suing their employees, but what might be the benefit of an employer choosing to do so? Well, according to Rice, there could be one: “The opportunity for employers to bring a countersuit is a potentially powerful deterrent to employees bringing frivolous lawsuits,” he explained.
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