Restricting Workers’ Access to EEOC is Retaliation, Commission Warns

The U.S. Equal Employment Opportunity Commission (EEOC) has again said that asking workers to waive their right to pursue discrimination charges with the commission is retaliation, albeit in an anticipatory form.

EEOC has taken that position several times in recent years but it reaffirmed its stance November 2, announcing a conciliation agreement involving such a waiver.

In a press release, the commission announced that the Illinois Department of Human Services (IDHS) agreed to revise its “grievance resolution agreements” to remove language that suggested that employees could not file charges with the EEOC.

“This resolution should serve as a reminder to all employers not to prohibit the rights of employees to file complaints of employment discrimination with the EEOC,” said Julianne Bowman, an EEOC district director. “Our focus on this right of employees will continue.”

The commission said these enforcement actions fall into one of its strategic priorities: preserving access to the legal system.

Employer Takeaway

While it’s common for employers to ask employees to release them from liability for past discriminatory actions (in exchange for some consideration), employers may run into trouble with the EEOC if the waiver seems to restrict workers’ access to the commission.

In its 2009 guidance Understanding Waivers of Discrimination Claims in Employee Severance Agreements, the commission says that waivers, in general, can be valid but any restriction on a workers’ ability to file charges with the EEOC is unenforceable.

“A waiver in a severance agreement generally is valid when an employee knowingly and voluntarily consents to the waiver,” the guidance says, with the following note to employees: “Although your severance agreement may use broad language to describe the claims that you are releasing …, you can still file a charge with the EEOC if you believe you were discriminated against during employment or wrongfully terminated. … Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.”

In recent years, however, the commission has gone further, filing lawsuits alleging that such a restriction amounts to retaliation under federal employment laws.

It has had little success, however, with this “anticipatory retaliation” argument. The 7th U.S. Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin—addressed the issue last year in a case that was ultimately dismissed on procedural grounds.

“Several circuit courts, including ours, have held that conditioning benefits on promises not to file charges with the EEOC is not enough, in itself, to constitute ‘retaliation’ actionable under Title VII,” it said in EEOC v. CVS Pharmacy, Inc., 809 F.3d 335 (7th Cir. 2015).