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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can Employers Require Employees To Waive Future Discrimination Claims Against Them?

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Having litigated employment discrimination cases for more than two decades, our Alachua County, Florida EEO attorneys know that employers often try to get employees to waive their right to bring employment discrimination and retaliation lawsuits against them. In most cases, employers try to get employees to waive their employment discrimination and retaliation claims by having them sign severance agreements. In other cases, employers try to get employees to waive their employment discrimination and retaliation claims in the context of subjecting employees to disciplinary action in lieu of terminating their employment. In such these cases, employers notify employees that they will not be fired and will be given a “last chance” to continue their employment if they agree to waive any future discrimination or retaliation claims.

This type of agreement is often a trap for employees. First, employers give up nothing under this type of agreement. Indeed, employers do not promise anything other than employees will not be fired for a brief designated period of time if they sign the agreement. Once that brief designated period of time expires, employers are then free to fire the employees. Second, because employees have surrendered all of their rights under the federal civil rights laws, they are not protected from future discrimination or retaliation. Consequently, employers are free to fire employees for an illegal reason, such as their age or race, and there is nothing employees can do about it because they have waived their legal protection against unlawful discrimination and retaliation.

Employee Claims Unlawful Retaliation

In Lester v. O’Rourke, Case No. 17-cv-1772 (N.D. Ill. June 27, 2018), the U.S. District Court for the Northern District of Illinois addressed the issue of whether employers can require employees to waive future discrimination or retaliation claims against them. In that case, Rodney Lester (Lester) brought a retaliation lawsuit against his former employer, the Department of Veterans Affairs (VA), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Under Title VII, employees are protected from retaliation when they complain about perceived discrimination in the workplace. Lester claims that the VA violated Title VII by firing him in retaliation for complaining about race discrimination.

Lester, who is African-American, began working for the VA in 1979. In 1992, Lester joined the IT Department at the VA’s Edward Hines Hospital as an electronics technician. At some unspecified point, the VA promoted Lester to the position of computer electrician at Hines Hospital.In this position, Lester was supervised by a white man named Brown.

Last Chance Agreements Are A “Trap” For Employees

From 2005 to 2009, Lester filed EEO complaints against the VA based on written reprimands and suspensions he received. In his EEO complaints, Lester alleged that Brown had racially discriminated against him. In December 2009, Brown sent Lester three “letters of inquiry” regarding Lester’s alleged on-going performance and conduct issues. Lester contends that Brown issued the “letters of inquiry” in retaliation for Lester’s EEO complaints against Brown. Consequently, Lester filed more EEO complaints alleging that Brown had retaliated against him.

In March 2010, the VA offered Lester a “Last Chance Agreement” (LCA). As the name implies, Lester had a choice between signing the LCA or losing his job. In September 2010, Lester signed the LCA. In the LCA, the VA agreed to hold Lester’s discharge in abeyance for ten months, remove certain discipline-related documents from his personnel file, and transfer him to another VA hospital. The LCA also required Lester to voluntarily dismiss his pending EEO complaints and waive his right to file a lawsuit with any court if the VA disciplined or terminated him pursuant to the LCA.

During the litigation, Lester’s union representative testified that the VA often uses LCA’s for employees with EEO complaints to force them to relinquish their claims “even in cases where is no valid reason to remove the employee.”  The union representative further testified that LCA’s are a “trap” for employees and that the VA fires most employees on LCA’s shortly after they sign the agreements.

In September 2010, the VA transferred Lester to another VA hospital pursuant to the LCA. After the transfer, according to the VA, Lester’s job performance never improved and actually took a turn for the worse. Ultimately, the VA fired Lester in July 2011, citing violations of the LCA’s performance requirements. Lester contends that the VA fired him for conduct that would not have gotten his co-workers fired.

Employees Cannot Waive Future Claims

The VA filed a motion with the trial court seeking dismissal of Lester’s retaliation claim. In doing so, the VA argued that Lester had surrendered his rights under Title VII and had waived his retaliation claim under Title VII by signing the LCA. The trial court rejected the VA’s argument and rued that Lester had presented sufficient evidence to establish that the VA had fired him in retaliation for complaining about race discrimination to proceed to trial.

In denying the VA’s motion for dismissal, the trial court concluded that the language in the LCA requiring Lester to withdraw his pending EEO complaints was enforceable because Lester was simply waiving existing claims in exchange for keeping his job. However, the trial court determined, the VA could not require Lester to waive all rights for any future employment discrimination or retaliation claims. The trail court reasoned that the VA was essentially threatening to fire Lester unless he surrendered all of his rights under Title VII with respect to future discriminatory or retaliatory conduct by the VA. Threatening to fire an employee based upon possible lawsuits against the employer for future discriminatory or retaliatory conduct, the trial court explained, was a form of unlawful retaliation prohibited by Title VII. Consequently, the trial court concluded that the language in the LCA requiring Lester to waive all rights for any future Title VII claims was unenforceable under federal law.

Free Consultation With Gainesville EEO Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Alachua County, Florida EEO attorneys have been representing employees for more than twenty years. If you have questions about your rights under the federal EEO laws or an employer’s attempt to have you surrender your protection against discrimination and retaliation, please contact our Alachua County, Florida EEO lawyers. Our employee rights law firm takes employment law cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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