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.