A State of Disarray: The 'Knowing and Voluntary' Standard for Releasing Claims Under Title VII of the Civil Rights Act of 1964

Abstract

The law governing when a court should enforce a person's purported waiver or release of claims under Title VII of the Civil Rights Act of 1964, made pursuant to an agreement with an employer, is in disarray. Although the courts of appeal agree that a person can waive a Title VII claim if the person's consent to the release is “knowing” and “voluntary,” they disagree on the standard to determine whether such consent is knowing and voluntary. Lacking guidance from Congress, the Supreme Court, or the United States Equal Employment Opportunity Commission, a majority of the federal circuits determine whether consent was knowing and voluntary based on the totality of the circumstances, and apply a test that focuses on the releasing person's state of mind more than would an application of ordinary contract principles. A minority of the circuits apply contract law principles. Not only are the circuits in disarray, each of the tests applied by them is in disarray. Courts applying the totality of the circumstances test, a test that focuses more on the releasing person's state of mind than a strict contract law test, often apply contract rules, which are generally objective rules focusing on what a person says and does, not what he or she thinks. Courts applying the contract law test often look at factors used under the totality of the circumstances test, despite such factors usually being irrelevant under contract law principles. The disarray is not surprising. The question of what standard should be adopted is enmeshed in the difficult issue of whether a Title VII release should be viewed as a waiver of fundamental rights, calling for a more subjective test, or as a contract, calling for a more objective test. The disarray is compounded by the difficult question of the appropriate source of law. Courts adopting the totality of the circumstances test have done so under their power to create a rule of federal common law, yet they sometimes apply state law in addition to federal common law, or they rely on state law to give content to the federal rule. Courts applying contract rules do not make clear whether the source of law is the forum state's law or general common law. The source of law question necessarily involves the larger debate over when state law should be borrowed to provide a federal common law rule's content. Although Supreme Court precedent suggests the creation of a uniform (i.e., nationwide) federal rule is appropriate to determine the validity of a release of federal statutory claims, the Court's later rulings in other contexts limit the circumstances in which federal courts should reject the incorporation of state law. These later decisions call into doubt the older precedent. This Article maintains that recent Supreme Court precedent dictates the rejection of a uniform federal common law rule and requires the use of state law to provide the substance of the federal common law rule, except in limited circumstances.

Keywords: Civil Rights Act of 1964, Title VII, release of claims, knowing and voluntary standard, contract law

JEL Classification: K14, K19, K40