The EEOC is getting serious about the kind of restrictions it thinks employers can lawfully include in separation agreements. The agency has filed a federal court lawsuit against CollegeAmerica (a private educational institution), alleging that the school violated federal law by offering an agreement with separation benefits conditioned on the separating employee agreeing not to disparage it and not to file any complaints or grievances with any government agencies. The agency's explanation for the claim is that: "Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties."

These kinds of waiver provisions are common in employee separation agreements. The specific language challenged in the CollegeAmerica lawsuit required that the employee agree: "to not intentionally with malicious intent (publicly or privately) disparage the reputation of CollegeAmerica, Denver Inc. or any of its related entities" and "to refrain from personally (or through the use of any third party) contacting any governmental or regulatory agency with the purpose of filing any complaint or grievance that shall bring harm to CollegeAmerica, Denver Inc. and any of its related companies."

The EEOC has long taken the position that the right to file a charge, testify, assist or participate in any manner in any investigation, hearing or proceeding under the laws it enforces "are non-waivable under the federal civil rights laws." In addition to asking to invalidate or reform the agreement that led to this lawsuit, the agency is asking the court to re-open the limitation period for any employee who signed a release containing the challenged language and allow an additional 300 days for that employee to file a charge of discrimination.

This case is still in its early stages and it remains to be seen what the court will say about it. In the meantime, though, employers should be careful with the provisions included in their separation agreements and make sure to confirm that the waiver language does not apply to any protected non-waivable rights.