Do Not Fire an Employee who Refuses to Give up Rights to File an EEOC Claim

Here is the hypothetical: Employer has an employee who is going to sign a “last chance agreement” in connection with performance or other disciplinary issues. The agreement includes language which prohibits the employee from filing charges with the EEOC for events that occur in the future. The employee refuses to sign the agreement because he is concerned about the effect of the agreement on his civil rights. The Employer fires the employee. Five other employees sign the agreement to avoid being fired.

Here is the reality: The termination constitutes unlawful retaliation in violation of Title VII and the act of forcing employees to choose between their right to file charges and their jobs constitutes unlawful retaliation. And, both actions cost the employer $500,000. http://eeoc.gov/eeoc/newsroom/release/1-31-13.cfm

Here is the lesson: Employers need to be careful when drafting releases of Title VII and other employment related claims. Employers need to remember that an employee’s release of claims must be knowing and voluntary and that an agreement that purports to prohibit an employee from limiting the employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA will be invalid. For more information, see: http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html#III

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