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Title VII Severance Agreement Issue Remains in Legal Limbo: Judge Tosses EEOC’s Suit Against CVS Solely on Procedural Grounds

Last month, we reported that an Illinois district court judge threw out the EEOC’s controversial lawsuit against CVS seeking to invalidate its severance agreements.  The judge there did so and promised to follow up with a written opinion.  That opinion has now arrived, but it’s not the one that we hoped for.  Rather than address whether CVS’s standard severance agreement violated its employees’ rights under Title VII, Judge Darrah focused on solely on certain procedural shortcomings; namely, that the EEOC had failed to engage in any conciliation prior to bringing the lawsuit.

Under section 707(e) of Title VII, the EEOC must follow certain pre-lawsuit procedures that are contained in section 706.  Such procedures include an effort to conciliate before filing a lawsuit. While the EEOC argued that it did not have to engage in conciliation because it brought a pattern or practice lawsuit under section 707(a) rather than 707(e), the court found this distinction to be unpersuasive.

The ruling did not, however, discuss the substance of the EEOC’s claim and it leaves open the question of whether provisions in a standard severance agreement can constitute a pattern or practice of resistance to Title VII.  That question may eventually be answered by the U.S. District Court for the District of Colorado in EEOC v. CollegeAmerica Denver, Inc., but until then employers should continue to review their severance agreements to ensure employees completely understand how the agreement affects their rights.

This post was written with contributions from Daniel Long.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume IV, Number 295
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About this Author

Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while...

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