Employers seeking to resolve EEOC Charges of Discrimination need to exercise caution when attaching strings to a settlement offer to a current employee. In a case decided last month by the Eleventh Circuit Court of Appeals, an employer was found to have retaliated against a pregnant employee by conditioning granting of a light-duty position on her dropping her EEOC Charge against the company.

In Chapter 7 Trustee v. Gate Gourmet, Inc., the plaintiff's union steward told her that she was going to be terminated because she was having difficulty performing her job duties due to her pregnancy. She filed an EEOC Charge alleging pregnancy discrimination against the union and her employer. When the employer learned of the situation, it reprimanded the steward, who in turn told the plaintiff that she would be placed on medical leave instead of being fired. The employer then went to the EEOC investigator who had been assigned the Charge, and offered to provide a light-duty job to the plaintiff contingent upon her dropping the Charge. She refused, and filed a second Charge against the company alleging retaliation.

The Eleventh Circuit reversed a grant of summary judgment for the employer. The court rejected the employer's argument that it was only trying to settle possible litigation with a former employee. Unfortunately for the employer, the plaintiff had not been officially terminated at the time the offer was made. Conditioning the accommodation on withdrawal of the Charge for an employee who otherwise would have been entitled under company policy was deemed retaliation under Title VII.

Had the employer simply offered the plaintiff the light-duty position without condition, it might have resolved the matter. By conditioning a privilege of employment on settlement of a pending EEOC Charge, the employer turned a bad situation into an even worse one. Legal counsel should review all offers of compromise to the EEOC before such offers are formally extended.