Employer Reminder: Don't Use Settlement Agreements to Stop Employees from Filing EEOC Complaints

Amid the deluge of sexual harassment allegations involving a broad spectrum of high-profile men, the Equal Employment Opportunity Chairperson (EEOC) Chai Feldblum wants to remind employers of the limits on employment settlement agreements. Feldbaum tweeted about the issue back in November 28, 2017 stating “EEOC has sued when we see agreements that appear to prevent employees from filing EEOC charges. Don’t write those.” She discussed it in a recent Reuters interview as well, noting that the EEOC will be closely examining settlement agreements for language that prevents employees from exercising their lawful rights to file an EEOC complaint. Of course the rule applies not only to the settlement of sexual harassment claims, but to any settlement agreement with an employee that attempts to prevent the employee from filing an EEOC charge on any recognized basis. In a 2015 case, EEOC v. Doherty Enterprises, Inc., the U.S. District Court in the Southern District of Florida recognized the EEOC’s authority under Title VII to bring suit against an employer that conditioned employment on employee’s execution of a broad mandatory arbitration agreement forcing employees to give up their right to file charges with the EEOC as well as state and local Fair Employment Practices Agencies (FEPA). Employers should review their form settlement agreements, and if necessary, add a language explicitly excluding EEOC and FEPA complaints and communications from the scope of the agreement.