In a recent case, Bresler v. Rock, 2018-Ohio-5138, an employee incongruously argued that an employer’s offer to reinstate his employment in exchange for dismissal of his pending lawsuit was a retaliatory action. The Ohio Court of Appeals soundly rejected that contention. Rather, employers can continue to negotiate settlements of discrimination allegations and include conditions of dismissal of lawsuits and releases of all claims and courts should not consider it a retaliatory action.

At the age of 60, after working for Anchor Hocking for over 41 years, Darrell Bresler was terminated. Earlier in the year, the company shut down its operations due to financial distress and most of its employees were furloughed. Four employees, including Bresler, were not recalled to work. Bresler’s plant manager contacted him and informed him that his employment was being terminated. He was offered a four-week severance package in exchange for a release of claims.

Bresler did not accept his employer’s severance offer. Rather, he filed a lawsuit against his former employer alleging age discrimination. Thereafter, the company offered to reinstate Bresler and compensate him in back pay as part of a settlement of the lawsuit, but Bresler refused to settle. At no time did Bresler apply for reemployment with the company.

At trial, Bresler admitted that no one made ageist comments to him and that his belief that he was laid off due to his age was based upon conjecture. One of the jury instructions stated that an employer’s act of offering reinstatement to a furloughed employee in exchange for his withdrawal of a lawsuit and release of age discrimination claims is not unlawful discrimination or retaliation. The jury returned a verdict in favor of the company and against Bresler on his age discrimination claim.

Bresler appealed the trial court decision arguing that the trial court erred by instructing the jury that it was not an adverse employment action for an employer to require an employee to dismiss a lawsuit in exchange for being rehired. The Tenth Appellate District held that the trial court’s jury instruction was a legally correct statement of law and affirmed the judgment.

Employers are prohibited from retaliating against employees for filing discrimination charges. Bresler argued that his situation was no different than if he was a current employee and was told that he would be terminated if he did not dismiss his discrimination charge. On the other hand, the company argued that employers may offer re-employment and back pay conditioned upon a settlement and written release of claims. The court rejected Bresler’s contention and found that employers may offer re-employment and back pay conditioned upon settlement and a release of claims.

The Court found that employers are under no obligation to rehire employees after layoffs. The conditional reinstatement offer was not the equivalent of threatening termination because the company was under no obligation to employ him after his layoff. Consequently, when an employer offers a position of employment with conditions attached such as dismissing a lawsuit and/or releasing all claims, the employer is not committing an adverse employment action. Employers and employees routinely lawfully negotiate settlements of discrimination allegations that include a waiver or release of all discrimination claims. Declining to pay severance or a settlement when an employee refused to execute a settlement agreement and/or a waiver of claims does not amount to retaliation.