Are Releases Constitutional?
Gar
347 Posts
Anne (not her real name)is a female employee who is layed-off by her employer. To receive a generous separation package she signs a standard release thereby giving up all claims against her employer. Joyce, a co-worker, is layed-off too but does not sign a release. She does file a gender discrimination claim. It becomes a class action law suit. Anne finds out about the law suit and opts in as a member of the class. However, she is reminded of her release by her former employer. Question: Is Anne being treated differently, in violation of the equal protection clause of the constitution, since she no longer has the same "rights" as Joyce and others who were layed-off and did not sign releases?
Comments
I have had the EEOC dismiss a charge with no investigation when I produced an executed release from the claimant that met all the legal requirements for all the discrimination laws. However, you need a good release drafted by a skilled employment attorney.
Margaret Morford
theHRedge
I don't believe however, that absense of the OWBPA language would effect a waiver of a sex discrimination claim.
However, the issue is a bit more complicated if the EEOC is suing on behalf of the class. The EEOC may try to take the position that it is not bound by the waiver. Some courts have held that the EEOC may sue on behalf of an individual who signed a waiver, but the indiviudal may not receive individual relief (for example, the EEOC could sue and get relief like requiring the employee to post information about Title VII and train its employees about discrimination, but the employee could not recieve back pay, front pay, etc). The case law is not fully developed on this issue (it is still an open question).
It seems that at a minimum this employee would not be an appropriate class member because she has an issue (the validity and effect of the release) that others do not share.
One final thought: The law is clear (at least in the 5th Circuit [Texas]), that an employee has a right to file a charge and cooperate with the EEOC, even if the employee has release her claims. Further, an agreement with an employee that the employee will not go to the EEOC or will not cooperate with the EEOC is void, and any penalty attached for a breach (for example, pay back the considertion) could be seen as retaliation.
I do not see any equal protection issue in this case. She is not a similarily situated person being treated differently. She is a person who is being treated differently based on her volentarily signing a release.
Good Luck!