Law.com reports today that a New York law firm has filed a pre-emptive lawsuit against a woman who is making rape allegations against her former boss, a firm partner. The story is here. This story follows several recent posts on this blog (here (Rob Lowe nanny) and here (fraud lawsuit against former employee equals retaliation)) about similar lawsuits.
The article quotes Debra S. Katz, an employment plaintiffs lawyer in Washington, D.C., as saying that “pre-emptive suits never made sense because they were ‘clearly retaliatory acts’ in the context of harassment and discrimination claims.” Our prior post referenced above noted the risk that a suit against a former employee in this context may be found to be unlawful retaliation. Anyone seriously considering a “pre-emptive” lawsuit must evaluate the potential liability for retaliation. If the threatened lawsuit is truly frivolous, bringing a “pre-emptive” lawsuit may just succeed in giving the claimant a viable claim.
“Katz also said such ‘thuggish’ tactics, aimed at getting someone to back off a claim, usually had the opposite effect, inspiring claimants to fight harder.” These kinds of lawsuits may also have a negative effect on employee morale, particularly if the claimant is well thought of in the workplace.
Does the recent increase in such cases signal a larger underlying discontent with the way the legal system works in these cases? Do those wrongfully accused of sexual harassment, for example, have any viable way to recover for the injury to their reputation other than a lawsuit against the accuser? The civil rights laws do not currently allow for prevailing defendants to recover attorneys’ fees, other than in the most eggregious frivolous cases. Perhaps these cases are an indication that the system is out of balance. Nevertheless, the jury remains out on “pre-emptive” lawsuits.