Recently, the United States Equal Employment Opportunity Commission (EEOC) has filed lawsuits challenging common provisions in employment separation agreements.  In these lawsuits the EEOC alleges that such boilerplate provisions as non-disparagement and non-disclosure of confidential information impede its ability to investigate claims and remedy discrimination.  While the courts have yet to decide whether the EEOC’s arguments in recent lawsuits filed against CVS and College America of Denver, Inc., employers should carefully review their separation agreements and releases and consider how to reduce the risk of any EEOC challenge.

Speaking recently, a supervisory trial attorney from the EEOC’s Chicago office stated that the challenged provisions constitute a restraint on employee’s rights to file a charge of discrimination with the EEOC or participate in an agency investigation, rights guaranteed under Title VII of the Civil Rights Act of 1964.  While employment attorneys have long understood that the Age Discrimination in Employment Act (ADEA) specifically states that no waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the EEOC, the EEOC’s most recent lawsuits attack boilerplate provisions found in most separation agreements which don’t even mention the EEOC.  Examples include:

  • non-disparagement
  • non-disclosure of confidential information
  • a general release of claims
  • statement of no pending actions and a covenant not to sue
  • attorney’s fees

Obviously the EEOC’s position is troublesome to employers.  Often the primary reasons that employers provide consideration for separation agreements is to obtain a release of all claims and a promise to avoid disparaging the company or disclosing confidential information.  The EEOC now alleges that the use of the provisions discussed above constitutes “resistance” to the employee’s full enjoyment of rights secured by Title VII and the ADEA because separation agreements interfere with the employee’s right to file a charge and participate in an administrative investigation.  Therefore, we recommend simple, clearly written separation agreements drafted so the release language clearly does not restrict employees from filing administrative charges or participating in investigations conducted by the EEOC.

If you would like help drafting or reviewing your organization’s separation agreements or releases, please contact a Davenport Evans employment attorney.

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms.  The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas.  For more information about Davenport Evans, visit or call 605-336-2880.