EEOC Warning: Confidentiality Provisions of Settlement Agreements Cannot Restrict An Employee’s Right To File EEOC Charges

The flurry of high-profile harassment allegations across various industries has drawn the public’s attention to the issue of sexual harassment over the past several months.  Unsurprisingly, it has also resulted in increased scrutiny in this area by the Equal Employment Opportunity Commission (EEOC).

Last week, one of the four current members of the EEOC issued an ominous warning to employers.  According to Commissioner Chai Feldblum, the EEOC will be keeping a close eye on settlement agreements to ensure that the agreements do not bar employees from filing an EEOC charge relating to sexual harassment (or any other recognized basis).  “It is important for employers to know that we are looking at these agreements,” Feldblum told Reuters.

The EEOC advised that it will pay particular interest in any non-disclosure or confidentiality provision contained within a settlement agreement.  While a confidentiality provision is an important (and lawful) aspect of a settlement agreement that protects an employer’s interests, care should be taken with the language.  The provision should be clear that, despite the confidentiality obligation, an employee still is permitted to file an EEOC charge.

In light of the Commissioner Feldblum’s warning, employers should proactively review their standard settlement agreements to ensure that any confidentiality provisions contain the necessary carve out allowing employees to file EEOC charges.