An Aggressive Stance on Settlement Agreement Provisions

January 26, 2015 Published Work
Connecticut Law Tribune, Employment and Immigration Law Special Section

You just finalized the settlement terms of a sexual harassment claim comprised of fairly provocative allegations. The employee initially filed a charge with the Equal Employment Opportunity Commission before suing in state court. The employer contested the material allegations, but is settling to avoid the costs, burdens and uncertainties of litigation and, in no small part, the potential public attention that would result from airing those ugly allegations. The employee, represented by experienced counsel, is similarly relieved that she was able to put the matter behind her and avoid unwanted attention. She did not get the amount demanded, but got enough to feel that the past is the past and she has been "compensated."

Of course, the terms of this agreement will include a general, comprehensive release of claims; mutual nondisparagement and confidentiality provisions; and some collateral terms which all sides agree are mutually beneficial. As is typical, one of the reasons the employer is paying a fairly generous sum of money is to make sure the contested matter is concluded, and thus, the settlement is conditioned on the EEOC's consent to the withdrawal of the charge.

If this scenario is a familiar one, be wary: the EEOC may refuse to permit the withdrawal and reject the employee's acceptance of these and other provisions.