Is an EEOC Charge Waiver Retaliation?
Yes, if you ask the EEOC. No, if you ask the Sixth Circuit Court of Appeals. In an interesting case in Virginia, an employee was offered severance pay in exchange for signing a release that contained a covenant not to sue her employer. Believing that she was the subject of discrimination, the employee chose not to sign the agreement and filled a charge with the EEOC. The trial court agreed with the EEOC and held that the agreement was facially retaliatory, but the Court of Appeals reversed noting that the employee was not an adverse action for the purposes of the retaliation analysis. In other words, she was not being given something or owed something that was then taken away because of some protected conduct.
See EEOC v. Sundance Rehabilitation Corporation 6th Cir., No. 04-4178, 10/24/06.