Retaliatory Counterclaims in Sexual Harassment Suits

posted by Neil Klingshirn  |  Aug 6, 2008 1:50 PM [EST]  |  applies to Ohio

If a party accused of sexual harassment in a suit (the Defendant) files a counterclaim against the harassment victim (the Plaintiff) after the Plaintiff filed suit, because she filed suit, courts will generally allow the Plaintiff to also challenge the counterclaim as retaliatory.  On the other hand, if a jury finds in favor of the Employer/Defendant, Ohio law allows the Employer/Defendant to sue the Plaintiff for abuse of process or malicious prosecution unless the employer's suit is "objectively baseless."

Retaliatory Counterclaims

Assume that an employee sues a supervisor or co-worker for sexual harassment in a lawsuit. As the Defendant, the supervisor or co-worker must "answer" the suit by admitting or denying the allegations in the complaint. In addition, the Defendant may assert claims that he or she has against the Plaintiff (the employee who filed suit). Claims that the Defendant asserts in its Answer are known as counterclaims.

In a sexual harassment case, an angry Defendant may want to file any possible counterclaim.  If the Defendant acts on this impulse and asserts a counterclaim for being sued, the Defendant may be liable not only for sexual harassment, but for unlawful retaliation as well. As a consequence, the court could order the accused to repay the victim for the costs and damage done by the retaliatory counterclaim.

The employer will be liable for a retaliatory counterclaim if the Plaintiff proves that the counterclaim is baseless in fact or law Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878, 888 (N.D. Ohio 2004) and EEOC v. Outback Steakhouse, Inc., 75 F. Supp. 2d 756, 760 (N.D. Ohio 1999). This test has been applied by at least one Ohio Court to Ohio Revised Code § 4112.02(I). Lynch v. Studebaker, 2007 Ohio 4014, P15-P26 (Ohio Ct. App., Cuyahoga County Aug. 9, 2007).

Retaliatory Defamation Suits

In Hughes v. Miller, Miller complained to her employer that Hughes, a co-worker, had sexually harassed her. Their employer investigated, issued a report that supported Miller's allegations and disciplined Hughes.  Unhappy with the damage that this did to his reputation, Hughes sued Miller for defamation, claiming that her allegations were false. Miller then counterclaimed for unlawful retaliation under Ohio Revised Code 4112.02(I). 

An Ohio trial court dismissed Hughes' defamation claim but allowed Miller to pursue her retaliation claim against Hughes. The court found that her internal company complaint was conduct opposing unlawful discrimination, and therefore protected by ORC 4112.02(I). Hughes' defamation suit was an adverse action. Since Section 4112.02(I) prohibits retaliation by "any person," including this co-worker, the appellate court allowed Miller to pursue her retaliation claim against Hughes.  Hughes. Hughes v. Miller, 2009 Ohio 963, P50-P48 (Ohio Ct. App., Cuyahoga County Mar. 5, 2009)

Defendant Abuse of Process Claims


When a sexual harassment victim sued her employer but lost, the Ohio Supreme Court allowed her employer to pursue a claim against her for abuse of process, malicious prosecution and intentional infliction of emotional distress, so long as the employer could show that its claims against the employee were not "objectively baseless."

In determining whether the employer’s action has an objective basis, the (court) should review the employer’s lawsuit pursuant to the standard for rendering summary judgment. (citations omitted) Thus, an employer needs to “show[] his lawsuit raises genuine issues of material fact.” If the employer satisfies this standard, the suit does not fall under the definition of sham litigation.

Greer-Burger v. Temesi, (2007) 116 Ohio St.3d 324. Claims for abuse of process, malicious prosecution and intentional infliction of emotional distress are difficult to prove. Hence, unless a Defendant has proof that the Plaintiff filed suit for an improper purpose, used improper means or engaged in outrageous conduct, the ability to sue an unsuccessful sexual harassment Plaintiff  may have little value and, in light of the risk of a retaliation counterclaim, dangerous to pursue.


Revision History

posted by Neil Klingshirn  |  Aug 6, 2008 1:50 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
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