One of the questions clients often ask me is whether they can pursue a plaintiff for defense costs after a successful dismissal. It only seems fair to the client that if they have to pay legal fees if the employee wins a discrimination lawsuit, the employee should be held to the same standard.
The answer is that an employer can pursue a plaintiff for legal fees, but it has to prove that the lawsuit was brought frivolously, which is a tall order. Ohio law defines frivolous conduct as follows:
It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose.
It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
The conduct consists of allegations or other factual contentions that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
The conduct consists of denials or factual contentions that are not warranted by the evidence or are not reasonably based on a lack of information or belief.
While it is not impossible, it is very difficult to prove that a employee acted frivolously in filing an employment lawsuit. Instead of spending time and money worrying about recouping legal fees from ex-employees, employers would better served chalking up litigation expenses as a cost of doing business, or simply avoiding litigation in the first place.