Are Releases Constitutional?

Gar

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?

Margaret Morford

It seems to me that Anne had the same rights as all the other women, but signed them away and got money for them. What if Joyce loses the lawsuit? Then you could argue that Anne had more rights than Joyce or that the company should get its money back from Anne.

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

Down_the_Middle

This probably warrants review by employment counsel. While "Anne" received "consideration" for signing the release, more and more courts are allowing the person to come forth and file suit, due to technicalities and OWBPA issues with the release. Former employees have also been returning the "consideration" (money) to the former employer and proceeding with litigation. I think I'd call my favorite counsel and have a chat on the topic.

Gar

OWBPA?

Down_the_Middle

Older Workers Benefit Protection Act signed into law in 1990....

xsafford

I can't remember all of the details, but there have been court decisions recently that permit the former employee to take the settlement and use the funds to finance a lawsuit against the former employer. Best bet - make sure the person leaving feels that they have been treated fairly and compassionately.

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 08-29-01 AT 09:51AM (CST)[/font][p]Under the OWBPA, if the employee is over 40 years of age, special language must be included in the release for it to be effective to waive age discrimination claims. If you go to the EEOC website, eeoc.gov, you can find its regulations about waivers, which can help you.

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!