The Ohio Supreme Court announced this week that the filing of a lawsuit by an employer against an employee who has engaged in protected activity is not per se retaliatory. In Greer-Burger v. Temesi, 2007-Ohio-6442, a female employee filed a sexual harassment lawsuit against her employer and subsequently quit her job. A jury ultimately found in favor of the employer, which, five months later, filed suit against the employee seeking punitive damages for malicious prosecution, abuse of process and intentional infliction of emotional distress.

In response, the employee filed a retaliation claim with the Ohio Civil Rights Commission (OCRC). Lower courts in Cuyahoga County found that the employer's filing a lawsuit against the former employee was an "adverse action" taken by the employer because the employee engaged in protected activity and upheld the OCRC's recommendation that the employer pay the employee US$16,000 for attorney fees she incurred in defending against the employer's suit. Realizing that the Court of Appeals' decision accepting the OCRC's position would permit employees "to engage in any kind of slander or defamation, and possibly even perjury, without consequence[,]" the Ohio Supreme Court found that an employer can prevail in a retaliation case based on the employer's lawsuit against an employee by showing that there is an objective basis for the lawsuit against the employee. Thus, an employer will prevail on retaliation claims if the employer shows that the "lawsuit raises genuine issues of material fact." The Court further noted that the inclusion of a claim for punitive damages also is not per se retaliatory. Instead, the inclusion of such a claim should be "analyzed within the context of the entire lawsuit."

The decision seems to provide some welcome relief for employers from the explosion of retaliation lawsuits and theories in recent months at both the state and federal level. The scope of the decision's effects on lower court cases will not be known for some time, so employers should still continue to proceed with caution and consult with counsel before taking any action that might be considered to be "adverse" against an employee who has filed an internal complaint, charge or lawsuit against the employer.