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Can we require employees to waive their rights to file an EEOC charge?

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in Compensation and Benefits,Discrimination and Harassment,Employment Law,Human Resources

Q. I know employees can be required to waive their rights to sue to resolve employment-related disputes, either through a negotiated release or binding arbitration agreement. Can an employer also require employees to agree to waive their rights to file EEOC charges?

A. In general, an employee has a protected right to file a charge and testify, assist or participate in any manner in an investigation, hearing or proceeding arising under any of the laws the EEOC enforces. Those laws include Title VII of the Civil Rights Act, the ADA, the Age Discrimination in Employment Act, and the Equal Pay Act.

According to the EEOC’s Enforcement Guidance, these rights are nonwaivable. Thus, the EEOC will consider any promise by an employee not to file a charge or participate in an EEOC proceeding to be unenforceable.

More important, the EEOC considers it unlawful retaliation to require an employee to sign such a waiver as unlawful retaliation. Employers that use such agreements are seen as penalizing employees, who are entitled to engage in activities protected by the civil rights laws.

So you’re well advised not to require employees to waive their rights to file a charge with the EEOC or otherwise participate in a proceeding before the federal agency.

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