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EEOC Continues Attacks Against Employers Accused of Requiring Employee to Waive Rights to Bring Discrimination Charges

    Client Alerts
  • September 14, 2015
Last year, the Equal Employment Opportunity Commission garnered significant criticism from employers when it sued CVS over its standard releases used in conjunction with reductions in force and similar employee terminations. The EEOC contended that the length and complexity of the releases made it appear that employees were precluded from filing EEOC charges, despite language in the agreements that specifically preserved this right. The federal district court dismissed the complaint on unrelated grounds involving the EEOC’s failure to engage in pre-lawsuit conciliation efforts.

Despite this dismissal, the EEOC continues to press these claims. It has appealed the CVS decision based on a recent Supreme Court decision clarifying the agency’s conciliation obligations. Also, the EEOC sued an Applebee’s franchisor in Florida, claiming that the employer’s mandatory arbitration agreement leads employees to believe that they are legally precluded from filing EEOC charges.

Last week, the federal district court in Miami denied the employer’s motion to dismiss the lawsuit on technical grounds. As a result of these litigation efforts, employers should review their releases and arbitration agreements. For many legal reasons, the agreements should be written in plain English, in a manner calculated to be understood by the employees in question, especially in situations where the employee does not have legal representation. Second, the agreements should explicitly state that nothing in their terms prohibit the employee from filing an administrative claim with any government agency, although a release may preclude the employee from any monetary recovery from such complaint.

Many employers suspect that the EEOC’s intent is to severely limit the use of releases and arbitration agreements in general. Such documents remain legally enforceable in most circumstances, but employers should carefully structure and periodically review their documents to make certain they are not subject to EEOC attack.