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Is a mandatory waiver of claims anticipatory retaliation?

Workers in California have a right to be free from retaliation when they seek to protect themselves from discrimination, sexual harassment or other kinds of unlawful workplace conduct. Sometimes, retaliation can take the form of a wrongful termination or being passed over for promotions, perks and appropriate performance bonuses. One federal district court is also embracing the position expressed by the Equal Employment Opportunity Commission, or EEOC, that waivers of an employee's right to pursue discrimination claims are a form of retaliation in advance.

The EEOC has long held that these waivers are invalid and unenforceable but also a form of anticipatory retaliation prior to a claim being made. In one recent case, the federal district court cited a U.S. Supreme Court decision that noted that a "materially adverse action," which is necessary for a retaliation claim, includes something that would discourage a reasonable worker from filing a claim. The EEOC and the court noted that signing a waiver of the right to make a discrimination claim in order to keep a job would fulfill this description.

The case in question concerns an employee of the Department of Veterans' Affairs, who filed a number of claims with the EEOC when he faced reprimands for alleged problems with performance and conduct. He was told that he would need to sign a "last-chance agreement" or be terminated from his position, and the agreement contained a provision waiving his right to make a claim before the EEOC or in court if he was terminated.

The courts continue to be divided on the question of the exact forms of conduct that are classified as retaliation, but workers should know that if their employers punish them for protecting their rights, it could be unlawful retaliation. An employment lawyer may help workers facing discrimination or retaliation on the job protect their rights.

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