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Alleged Inconsistent Enforcement of Non-Compete Agreements Raised in Discrimination Case

Employers sometimes ask whether it matters if they are inconsistent in their enforcement of non-competes.  Typically, the issue is analyzed in terms of whether inconsistent enforcement undercuts the legitimate business interest justifying the restriction.  However, in a pending lawsuit, Miller v. Canadian National Railway Co., the issue is being raised in a different context: whether alleged inconsistent enforcement was racially motivated.  Specifically, the plaintiff in that case alleges that “[b]y enforcing the non-compete against Miller and not against similarly situated white employees, Defendants are interfering with Miller’s future employment relationships because of his race.”

Enforcement of non-competes rarely comes up in the context of a discrimination claim, but as illustrated by this case, this is another factor of which employers should be aware when considering whether to enforce a restrictive covenant.

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Peter Steinmeyer, Labor Attorney, Epstein Becker Law Firm
Member

PETER A. STEINMEYER is a Member of the Firm in the Labor and Employment practice of Epstein Becker Green and serves as the Chicago office Managing Shareholder. Practicing in all aspects of labor and employment law, he is also Co-Chair of the firm's Non-Competes, Unfair Competition and Trade Secrets Practice Group.

Mr. Steinmeyer advises clients on the enforcement and drafting of non-compete, non-solicitation, and employment agreements, litigates trade secret, non-compete, non-solicitation, raiding, and other restrictive covenant matters in...

312-499-1417
Erica McKinney, Epstein Becker, labor and employment lawyer
Associate

ERICA R. McKINNEY is an Associate in the Employment, Labor & Workforce Management practice, in the Chicago office of Epstein Becker Green.

Ms. McKinney:

  • Represents clients in labor and employment law litigation matters involving harassment, discrimination, retaliation, breach of employment contracts, and tort claims
  • Counsels clients on all aspects of compliance with federal, state, and local laws affecting labor and employment relations
  • Drafts employment agreements, severance agreements, settlement agreements, confidentiality agreements, and restrictive covenants

Before joining Epstein Becker Green, Ms. McKinney served as a law clerk to the Honorable Margaret B. Seymour of the U.S. District Court for the District of South Carolina and the Honorable Zoe Bush of the Superior Court of the District of Columbia.

312-499-1401