Discrimination claim waivers can be 'anticipatory retaliation,' court says

Dive Brief:

A federal district court has allowed an employee to move forward with an "anticipatory retaliation" claim after his employer required him to waive his right to pursue future discrimination claims as part of a last-chance agreement (Lester v. O’Rourke, No. 17-cv-1772 (N.D. Ill., June 27, 2018)).
Rodney Lester, a U.S. Department of Veterans’ Affairs employee, was disciplined many times, receiving written reprimands and suspensions for alleged performance and conduct issues. He filed an EEO claim each time, alleging he suffered discrimination and retaliation based on race. Eventually, he was told he could sign a last-chance agreement or lose his job. He signed the agreement which, among other things, required him to voluntarily dismiss his pending EEO complaints and waive his right to seek relief with the U.S. Equal Employment Opportunity Commission (EEOC) or a federal trial court if he was disciplined or terminated under the agreement.
After being fired, Lester sued. The district court threw out most of his claims, but refused to grant summary judgment for the employer on his retaliation claim, finding that "the [last-chance agreement] constituted a materially adverse employment action because it required Plaintiff to waive his right to file any future Title VII claims in order to keep his job."

Dive Insight:

The "anticipatory retaliation" theory involves an adverse employment action taken before a claim is made, taken with the purpose of preventing a claim. And as the Lester court put it, quoting the U.S. Supreme Court, "In the retaliation context, a materially adverse action means something that would have dissuaded a reasonable worker from engaging in protected activity."

Previously, some have argued that the theory applies when an employee has been told not to complain about an impending adverse employment action. Separately, the U.S. Equal Employment Opportunity Commission (EEOC) has long considered waivers that restrict access to the agency unenforceable. But in recent years, the commission made clear that it believes the those waivers also constitute retaliation. Requiring employees to waive their rights under federal anti-discrimination statutes as a condition of employment violates those laws, it said in a statement.

The commission hasn't been completely successful in its position, but, as Lester demonstrates, some courts have entertained the idea. Employers may want to craft waiver language carefully, experts say, as well as review applicable precedent and consult with counsel before finalizing last-chance, severance or other agreements.