Though such workplace claims are common, the filing of pre-emptive lawsuits against potential claimants remains a relatively rare and frequently controversial legal gambit. However, the tactic is a familiar one for the lawyer representing Bivona & Cohen.Indeed, here's a 2004 column on a previous suit the lawyer brought for guess who, Bill O'Reilly. Its authors noted that such preemptive claims rely on bogus legal theories and would seem to be a form of retaliation in violation of Title VII of the Civil Rights Act.
Yet unless employers are strictly sanctioned for this tactic, they may not care if its meritless and even illegal. This tactic allows them to have the first say in the court of public opinion -- essentially by painting the putative plaintiff, and now defendant, as a slut, liar and money-grubber -- and thereby to demoralize the employee-claimant and deter future claims.