concurring in part and dissenting in part.
{¶ 34} I concur in reversing the judgment of the Eighth District Court of Appeals, but dissent in part and write separately because of what appears to me a lopsided balancing of the competing interests at hand.
{¶ 35} Ohio gives broad protection to employees who claim employment discrimination. It is “an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.” (Emphasis added.) R.C. 4112.02(1).
{¶ 36} This statute plainly protects an employee from retaliation by an employer when the employee has been involved in what has been termed a “protected activity.” Canitia v. Yellow Freight Sys., Inc. (C.A.6, 1990), 903 F.2d 1064, 1066. The majority opinion, however, erodes this statutory protection by holding in paragraph two of the syllabus that an employer may sue an employee “[i]f an employer can demonstrate that a lawsuit against an employee * * * is not objectively baseless.” Couched in terms of upholding the right to redress, this rule is overly generous to the employer, while placing employees at risk for enforcing their rights. I dissent and would hold that an employer should be allowed to file a complaint to recoup losses to reputation only when the employee’s action had no basis in fact, and that such an action should not be deemed retaliatory within the meaning of R.C. 4112.02(1).
{¶ 37} The majority’s “not objectively baseless” test sets a very low threshold and means that if an employee loses an underlying discrimination lawsuit, the employer may always seek to recover economic damages such as attorney fees in defending the suit. In other words, any employee who protested against discrimination in the workplace unsuccessfully would risk having to defend an action by the employer unless the employer’s action is a “sham.” Because a sham lawsuit is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993), 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611, it is difficult to see how any lawsuit filed by an employer who successfully defended a discrimination action falls within that category. Claims for redress after an employee’s failed litigation can hardly be deemed “objectively baseless” when measured by the summary judgment standard that the majority proposes. Consequently, Ohio Civil Rights Commission administrative judges *334must allow every employer lawsuit to proceed under circumstances such as these, regardless of the chilling effect the suits may have on other employees. I do not believe that the majority’s standard properly balances the rights at stake.
{¶ 38} Athough I agree with the first paragraph of the syllabus that the mere filing of a lawsuit by an employer is not per se retaliation, I would also hold that such a filing raises retaliation as a prima facie issue to be rebutted. The employer may respond by showing how the employee’s previous discrimination claim was totally without merit. But such a showing should involve more than a judgment in the employer’s favor, and certainly more than the “material issues of fact” required to be present to survive under a summary judgment standard.
{¶ 39} I also dissent from the majority’s conclusion that a punitive damages claim does not establish retaliation and that “the punitive-damages claim should be analyzed within the context of the entire lawsuit.”
{¶ 40} Notwithstanding the majority’s citation of Illinois’ regular practice of seeking punitive damages for willful torts, we have held repeatedly that “[t]he purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.” (Emphasis added.) Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331. We also held in Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 439, 715 N.E.2d 546, that “a punitive damages award is more about defendant’s behavior than the plaintiffs loss.” Indeed, it is possible that a punitive damage award may ultimately dwarf a compensatory award.
{¶ 41} Because the purpose of punitive damages claims is to punish and deter the conduct of the defendant, it is my view that an employer engages in retaliatory conduct by seeking such a remedy against an employee who has exercised the right to bring a discrimination lawsuit but has ultimately failed in that endeavor. Athough the majority defends its position by saying “a blanket prohibition on employer punitive damages would open the door to truly frivolous cases,” this statement ignores the converse — that in every case, including the nonfrivolous, an employee may face the possibility of an award of punitive damages as part of a lawsuit to compensate a prevailing employer. Alowing the routine inclusion of punitive damages in suits against employees who lose their cases will have a freezing, rather than a chilling, effect on others who wish to exercise their rights under the antidiscrimination statutes.
{¶ 42} I do agree, however, that with respect to situations in which an employee has filed a totally baseless claim, the employer should be allowed to be made whole for defending the unfounded accusations by filing a claim for defamation, abuse of process, or intentional infliction of emotional distress. The federal cases cited in the majority opinion support the idea that claims for defamation to protect one’s reputation are not retaliatory within the meaning of *335federal discrimination law. The right to redress allows for full compensation, and any “punishment” of the employee for filing a false claim comes in the form of compensatory damages and attorney fees rather than punitive damages.
Marc Dann, Attorney General, Elise Porter and Benjamin Mizer, Deputy Solicitors, Susan Sullivan, Assistant Solicitor, and Wayne D. Williams, Assistant Attorney General, for appellee Ohio Civil Rights Commission. Summers and Vargas Co., L.P.A., William Lawrence Summers, and Edwin J. Vargas; and Frantz Ward L.L.P., and Kelly Summers Lawrence, for appellant. Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, urging affirmance for amici curiae, the Ohio Employment Lawyers Association and the Committee Against Sexual Harassment.{¶ 43} The majority has adopted a loose standard that will encourage employers to sue those employees who do not prevail on discrimination claims, a result that weakens the protection given under the statutes. I therefore dissent from paragraph two of the syllabus and contend that a better test would be to confine an employer’s responsive lawsuit only to situations in which the employee has filed totally unsubstantiated — i.e., frivolous — charges and has damaged the employer’s reputation. The employer could then seek complete redress, but not punitive damages.
{¶ 44} I concur in the vacating of both the Ohio Civil Rights Commission’s cease-and-desist order and the award of attorney fees to Greer-Burger.
Pfeifer and Lundberg Stratton, JJ., concur in the foregoing opinion.