“After I have signed a severance agreement, without help from an attorney, can I still file a discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC)?”
Published on May 5th, 2010 by Alan L Sklover
Question: I was Compliance Officer, HR Manager, and Personal Assistant in a hedge fund in Connecticut. In October of last year, about six months ago, my “position was eliminated.” I was given a severance agreement which I had no choice but to sign, without the help of an attorney.
I was 56 and the only female in the firm. I’ve since found out that a 20-something was hired for essentially my job.
Do I have a federal age/sex discrimination claim against the firm? The State of Connecticut gives employees only 180 days to file a claim based on state law, so it’s too late for that. HELP!!
Answer: Ellen, your letter really presents three separate questions:
1. Do I have a claim of discrimination?
2. Can I file a claim of discrimination even after I’ve signed a severance agreement?
3. Is it too late to file a claim of discrimination?
Let’s take each question, one by one:
1. Do You Have A Claim? Perhaps, but I can’t tell if you have the basis of a legal claim for age discrimination or not, because the facts you’ve provided are just insufficient.
You must understand that it is not illegal to lay off an older person (don’t take that personally – I’m older than you are!), but it is a violation of law to do so because of his or her age. As you can see, what is illegal is the “motivation” for the layoff, not the layoff, itself. Likewise, it is not illegal to hire a younger person, even to replace an older person, but it is a violation of law to do so on the basis of the two individuals’ ages.
I would say that your being replaced by a younger person suggests you might have a legal claim, but a more in-depth review of the facts is necessary.
2. Can You File a Claim After Signing a Severance Agreement? It may be difficult, but the answer to this question depends on what it says in your severance agreement. In my many years of experience, I would say that 99% of severance agreements say, in effect, “In exchange for these severance monies, I agree to give up any claims I might have for discrimination, and other claims.” So, you likely have given up your right to collect any money on the basis of a claim for age discrimination by filing a claim of discrimination with the federal agency, the Equal Employment Opportunity Commission (“EEOC”).
However, because you did not have an attorney review your severance agreement, you might be able to argue in a Court that your “release of claims” is invalid. If you won that argument, though, you would probably have to return the severance monies to your former employer.
3. Is It Too Late to File a Claim of Illegal Discrimination? No. In your email to us, you wrote that you believe it is too late to file a Connecticut State Claim of Discrimination because you only have 180 days to do that. You may not know it, but the deadline in Connecticut is 180 days from the date of the event of discrimination or the date you learned of it. Since you learned of it recently, your time to file a Connecticut State Claim of Discrimination may not have expired.
If your former employer had 20 or more employees, then you can file a claim of age discrimination with the federal EEOC agency within 300 days from the date of the alleged harm. For you, that would be sometime in August, and so it would not be too late to file a claim.
Though they can be expensive, I do recommend you consider having a legal consultation with a local employment attorney to review your case and your options.
I hope this is helpful.
Best, Al Sklover
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