Most employers understand that there are limits on the claims that employees can release in connection with resolving employment claims. Under Title VII, employees cannot be required to give up their right to pursue administrative remedies with the EEOC, or promise not to communicate with the EEOC. Accordingly, when drafting a release of claims, employers need to avoid using language that suggests, as a condition of receiving severance or a settlement payment, that an employee is prohibited from filing a charge with the EEOC and/or from testifying, assisting or participating in an EEOC investigation, hearing or proceeding. A better practice is to expressly carve out that the employee is not waiving rights that cannot be waived by law, for example, administrative claims before the EEOC.
More information about employee waivers of discrimination claims in severance agreements can be found here: http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html