EEOC v. Sundance Rehabilitation Corp., 6th Cir. Brief as appelle June 30, 2005 No. 04-4178 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SUNDANCE REHABILITATION CORPORATION, Defendant-Appellant. ______________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio, Eastern Division Docket No. 01-1867 Hon. Lesley Wells ______________________________________________________ BRIEF OF APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7020 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4571 LORRAINE C. DAVIS daniel.vail@eeoc.gov Assistant General Counsel DANIEL T. VAIL Attorney CORPORATE DISCLOSURE STATEMENT As an agency of the United States government, the EEOC is exempt from filing a corporate affiliate/financial interest disclosure statement. See 6 Cir. R. 26.1(a). TABLE OF CONTENTS Page FACT SHEET FOR TITLE VII APPEALS . . . . . . . . . . . . . . . iv TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v STATEMENT IN SUPPORT OF ORAL ARGUMENT. . . . . . . . . . . . . .1 STATEMENT ON JURISDICTION. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 A. The Nature of the Case and the Course of Proceedings .3 B. Statement of Facts . . . . . . . . . . . . . . . . . .4 C. The District Court's Decision. . . . . . . . . . . . .9 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Standard of Review . . . . . . . . . . . . . . . . . 16 B. The District Court Correctly Held that SunDance Violated the Anti-Retaliation Rules in the EPA, Title VII, the ADEA, and the ADA. . . . . . . . . . . . . . . . 17 C. The District Court Appropriately Exercised Its Broad Discretion to Award Relief Required to Eliminate the Effects of Illegal Retaliation. . . . . . . . . . . . . . . . . 48 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 54 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . 55 ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1 Appellee's Designation of Contents of Joint Appendix. . .A-2 Complete Text of Statutory Anti-Retaliation Rules . . . .A-5 EEOC's Enforcement Guidance on Non-Waivable Employee Rights . . . . . . . . . . . . . . . . . . . . . . . . . A-7 CERTIFICATE OF SERVICE UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT FACT SHEET FOR TITLE VII APPEALS 6th Cir. R. 28(c) requires that counsel for the appellant and for the appellee file a one-page fact sheet in all Title VII appeals. The fact sheet should be the same size as the pages in the brief. It should be placed in the briefs of the parties immediately following the table of contents and preceding the statement of issues presented for review. Use this form, 6CA-56. Case Name and Number: EEOC v. SunDance Rehabilitation Corp. 04-4178 (6th Cir.); 01-1867 (N.D. Ohio) Person Reporting: Daniel Travis Vail, Counsel for Appellee EEOC 1. Date EEOC complaint filed: Apr. 20, 1999 2. Was any compromise reached by the state civil rights agency?: No. By EEOC?: No. 3. Date EEOC right to sue letter issued: Sept. 30, 1999 4. Date present action filed: August 1, 2001 5. Have all filings been timely?: Yes If not, are any "tolling" arguments available?: N/A If so, describe: N/A 6. Nature of claims of discrimination and date(s) of occurrence: The EEOC alleges that SunDance violated the anti-retaliation provision of Title VII (and other federal employment discrimination laws) by conditioning the provision of severance benefits on the waiver of the right to file an EEOC charge and participate in EEOC proceedings, and by otherwise using a "Separation Agreement, General Release and Covenant Not to Sue." These unlawful employment practices have been occurring since at least March 5, 1999. 7. Disposition Below: The district court (Hon. Lesley Wells, presiding) granted the EEOC's motion for summary judgment on July 26, 2004, and issued appropriate affirmative and injunctive relief. TABLE OF AUTHORITIES Page Cases Abbott v. Crown Motor Co., Inc., 348 F.3d 537 (6th Cir. 2003). . . . . . . . . . . . . . . 18 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . .49-50 American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998). . . . . . . . . . . 36, 43, 45 Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001) . . . . . . . . . . . . . . 32 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). . . . . . . . . . . . . . . 17 Brown v. City of Tuscon, 336 F.3d 1181 (9th Cir. 2003) . . . . . . . . . . . . . . 34 Cal. Acrylic Indus., Inc. v. NLRB, 150 F.3d 1095 (9th Cir. 1998) . . . . . . . . . . . . . . 31 Callicotte v. Carlucci, 698 F. Supp. 944 (D.D.C. 1988). . . . . . . . . . . . . . 43 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . 17 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 36 Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005). . . . . . . . . . . . . . . 16 Conn. v. Teal, 457 U.S. 440 (1982) . . . . . . . . . . . . . . . . . .37-38 Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651 (6th Cir. 2005). . . . . . . . . . . . . .31-32 EEOC v. Astra, Inc., 94 F.3d 738 (1st Cir. 1996) . . . . . . . . . . . 44, 47, 51 EEOC v. Bd. of Governors of State Coll. & Univ., 957 F.2d 424 (7th Cir. 1992). . . . . . .9, 13-15, 21-30, 48 EEOC v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085 (5th Cir. 1987) . . . . . . . . 43, 45, 47, 50 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999). . . . . . . . . 39, 40, 42, 50 EEOC v. Joe's Stone Crab, 220 F.3d 1263 (11th Cir. 2000). . . . . . . . . . . . . . 38 EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996) . . . . . . . . . . . . . . . 42 EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993). . . . . . . . .19, 21, 29, 38-39 EEOC v. Romeo Cmty. Sch., 976 F.2d 985 (6th Cir. 1992). . . . . . . . . . . . . .18-19 EEOC v. Seafarers Int'l Union, 394 F.3d 197 (4th Cir. 2005). . . . . . . . . . . . . . . 36 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . .40-41 EEOC v. U.S. Steel Corp., 671 F. Supp. 351 (W.D. Pa. 1987). . . .21-22, 24, 29, 39, 42 EEOC v. Waffle House, 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . .41-42 EEOC v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir. 1994) . . . . . . . . . . . . . . . 50 Everson v. Mich. Dep't of Corr., 391 F.3d 737 (6th Cir. 2004). . . . . . . . . . . . . . . 38 Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. 2003). . . . . . . . . . . . . . . 43 Frank v. United Air Lines, Inc., 216 F.3d 845 (9th Cir. 2000). . . . . . . . . . . . . . . 38 Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . 50 Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . 40 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . . 42 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) . . . . . . . . . . . . . . . . . . . 37 Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996). . . . . . . . . . . . . . . . 38 Hishon v. King & Spalding, 467 U.S. 69 (1984). . . . . . . . . . . . . . . . . . 14, 25 Howlett v. Holiday Inns, Inc., 120 F.3d 598 (6th Cir. 1997). . . . . . . . . . . . . . . 48 Int'l Union, UAW v. Johnson Controls, 499 U.S. 187 (1991) . . . . . . . . . . . . . . . . . . . 37 Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000). . . . . . . . . . . . . . . 19 Kralman v. Ill. Dep't of Veterans' Affairs, 23 F.3d 150 (7th Cir. 1994) . . . . . . . . . . . . . . . 36 Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989) . . . . . . . . . . . . . . . . . . . 37 Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) . . . . . . . . . . . . . 27, 35 McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988) . . . . . . . . . . . . . . 43 McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir. 1990). . . . . . . . . . . . . . . 29 Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . . . . . . . . . 21 Mich. Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337(6th Cir. 1994). . . . . . . . . . . . . . . . 34 Minadeo v. ICI Paints, 398 F.3d 751 (6th Cir. 2005). . . . . . . . . . . . . . . 16 Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998) . . . . . . . . . . . . . . . 35 NLRB v. Coca-Cola Co. Foods Div., 670 F.2d 84 (7th Cir. 1982) . . . . . . . . . . . . . . . 32 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) . . . . . . . . . . . . . . . . . . . 32 Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) . . . . . . . . . . . . . . . . . 15, 37 Nguyen v. Cleveland, 229 F.3d 559 (6th Cir. 2000). . . . . . . . . . . . . 15, 38 Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S. 427 (1973) . . . . . . . . . . . . . . . . . . . 33 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . 40 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . . . 12, 19, 29, 38 Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). . . . . . . . . . . . . . . 27 Tasty Baking Co. v. NLRB, 254 F.3d 114 (D.C. Cir. 2001) . . . . . . . . . . . . .31-32 Town of Newton v. Rumery, 480 U.S. 386 (1987) . . . . . . . . . . . . . . . . . . . 47 Walborn v. Erie County Care Facility, 150 F.3d 584 (6th Cir. 1998). . . . . . . . . . . . . . . 27 Wastak v. Lehigh Valley Health Network, 342 F.3d 281 (3d Cir. 2003) . . . . . . . . . 10, 36, 43, 52 Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367 (6th Cir. 2002). . . . . . . . . . . . . . . 27 White v. Burlington N. & Santa Fe Railway Co., 364 F.3d 789 (6th Cir. 2004). . . . . . . . . . . . . . . 27 Statutes Equal Pay Act of 1963, 29 U.S.C. § 206(d). . . . . . . . . . . . . . . . . . passim Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . passim Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.. . . . . . . . . . . . . . . passim Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.. . . . . . . . . . . . . . passim TABLE OF AUTHORITIES (con't) Page 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .2 29 U.S.C. § 158(a)(1). . . . . . . . . . . . . . . . . . . . . 31 29 U.S.C. § 211. . . . . . . . . . . . . . . . . . . . . . . . 41 29 U.S.C. § 215(a)(3). . . . . . . . . . . . . . . . . . . . . 18 29 U.S.C. § 216(b) . . . . . . . . . . . . . . . . . . . . . . 49 29 U.S.C. § 623(d) . . . . . . . . . . . . . . . . . . . . . . 18 29 U.S.C. § 626(a) . . . . . . . . . . . . . . . . . . . . . . 41 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . 49, 53 29 U.S.C. § 626(c) . . . . . . . . . . . . . . . . . . . . . . 53 29 U.S.C. § 626(d) . . . . . . . . . . . . . . . . . . . . . . 53 29 U.S.C. § 626(f)(4). . . . . . . . . . . . . . . .14, 18, 35-36 29 U.S.C. § 628. . . . . . . . . . . . . . . . . . . . . . . . 36 29 U.S.C. § 2615(a)(1) . . . . . . . . . . . . . . . . . . . . 32 42 U.S.C. § 3617 . . . . . . . . . . . . . . . . . . . . . . . 33 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . 41, 53 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . 53 42 U.S.C. § 2000e-5(g)(1). . . . . . . . . . . . . . . . . . . 49 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . 41, 49, 53 42 U.S.C. § 12203(a) . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12203(b) . . . . . . . . . . . . . . . 15, 18, 31, 34 42 U.S.C. § 12203(c) . . . . . . . . . . . . . . . . . . . . . 49 Legislative History H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . 33 Regulations 24 C.F.R. § 100.400. . . . . . . . . . . . . . . . . . . . . . 33 29 C.F.R. § 1622(k). . . . . . . . . . . . . . . . . . . . . . 36 29 C.F.R. § 1625.22(i)(2). . . . . . . . . . . . . . . . . . . 52 29 C.F.R. § 1625.22(i)(3). . . . . . . . . . . . . . . . . . . 36 29 C.F.R. § 1625.23(b) . . . . . . . . . . . . . . . . . . . . 52 TABLE OF AUTHORITIES (con't) Page 29 C.F.R. § 1626.15(b) . . . . . . . . . . . . . . . . . . . . 53 29 C.F.R. § 1630.12(b) . . . . . . . . . . . . . . . . . . . . 31 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 55 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 55 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 55 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 55 Fed. R. App. P. 34(a)(2)(C). . . . . . . . . . . . . . . . . . .1 Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . 17 6 Cir. R. 26.1(a). . . . . . . . . . . . . . . . . . . . . . . .i 6 Cir. R. 28(c). . . . . . . . . . . . . . . . . . . . . . . . iv 6 Cir. R. 28(d). . . . . . . . . . . . . . . . . . . . . . . .A-3 6 Cir. R. 30(f). . . . . . . . . . . . . . . . . . . . . . . .A-4 6 Cir. R. 34(a). . . . . . . . . . . . . . . . . . . . . . . . .1 6 Cir. R. 34(j)(2)(C). . . . . . . . . . . . . . . . . . . . . .1 TABLE OF AUTHORITIES (con't) Page Administrative Guidance EEOC Compl. Man., Section 8: Retaliation (1998), (available at http://www.eeoc.gov/policy/docs/retal.html) . . 18-20 EEOC Notice 915.001: EEOC Enforcement Guidance on Non-Waivable Rights under EEOC Enforced Statutes (1997), (available at http://www.eeoc.gov/policy/docs/waiver.html) . 20-21, 41-42 Miscellaneous B. Lindemann & P. Grossman, Employment Discrimination Law (3d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . .41 STATEMENT IN SUPPORT OF ORAL ARGUMENT This appeal requires this Court to interpret and apply the anti-retaliation provisions of the four principal federal employment discrimination laws – the Equal Pay Act of 1963 (the "EPA"), 29 U.S.C. § 206(d), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. §§ 621 et seq., and the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq. This appeal requires this Court to decide whether an employer retaliates in violation of these laws if the employer refuses to pay its employees severance benefits unless the employees agree to waive their right to file a charge with the EEOC and/or to participate in EEOC proceedings. This appeal also requires this Court to decide whether the district court appropriately exercised its broad discretion to award equitable relief necessary to eradicate the effects of illegal discrimination. Due to the importance of these issues, plaintiff-appellee Equal Employment Opportunity Commission believes oral argument would significantly aid this Court's decisional process. See Fed. R. App. P. 34(a)(2)(C); 6 Cir. R. 34(j)(2)(C). The EEOC thus asks this Court to grant oral argument in this matter. See 6 Cir. R. 34(a). STATEMENT ON JURISDICTION The EEOC filed this lawsuit against SunDance Rehabilitation Corporation under the four main federal employment discrimination laws. (R.1,<1> Complaint pgs.1- 3, Apx.7-9.<2>) The district court thus had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 1331, 1337, 1343, and 1345. The district court entered final judgment in favor of the EEOC on July 26, 2004. (R.44, Judgment Entry Order, Apx.212.) SunDance filed a timely notice of appeal on September 23, 2004. (R.46, Notice of Appeal, Apx.215.) See Fed. R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES • Whether the district court correctly ruled that portions of SunDance's severance agreement violate the anti-retaliation provisions of the EPA, Title VII, the ADEA, and the ADA. • Whether the district court's order should be affirmed as an appropriate exercise of the district court's discretion to award equitable relief required to remedy illegal discrimination. STATEMENT OF THE CASE A. The Nature of the Case and the Course of Proceedings The EEOC filed this lawsuit on August 1, 2001, alleging that SunDance's use of a "Severance Agreement and General Release" – conditioning severance benefits on the waiver of the right to engage in statutorily-protected EEOC-related administrative activity – violated the anti-retaliation provisions of the four principal federal employment discrimination laws. (R.1, Complaint, Apx.7.) According to the Commission's Complaint, "[s]ince at least March 5, 1999, Defendant SunDance has engaged in continuing unlawful employment practices at its North Olmsted, Ohio, facility" including "retaliating against individuals affected by its [severance agreement] . . . because of their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding." (R.1, Complaint pgs.4, 5, 6 ¶¶ 11, 14, 16, 18, Apx.10,11,12.) Accordingly, the EEOC sought an order providing injunctive and affirmative relief, including (1) reforming the relevant severance agreement to expressly permit employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay; (2) paying charging party Elizabeth Salsbury and similarly situated individuals severance pay; and (3) instituting further measures to remove barriers to employees who wish to file a charge with the EEOC or participate in an EEOC investigation or proceeding. (R.1, Complaint pg.7 Prayer for Relief ¶ D, Apx.13.). The EEOC also sought an order requiring SunDance to deliver a corrective notice to former employees and tolling all limitations periods for filing charges or claims. (R.1, Complaint pg.7 Prayer for Relief ¶ D, Apx.13.) Both sides moved for summary judgment. (R.24, SunDance's Motion for SJ); (R.33, EEOC's Cross Motion for SJ.) A Magistrate Judge recommended that the EEOC's motion for summary judgment be denied and that SunDance's motion for summary judgment be granted. (R.39, Magistrate Judge's Report and Recommendation ("R&R", Apx.136.) The EEOC filed objections to the Magistrate Judge's R&R. (R.41, EEOC's Objections to R&R, Apx.152.) On July 26, 2004, the district court rejected the Magistrate Judge's R&R, denied SunDance's motion for summary judgment, and granted the EEOC's motion for summary judgment. (R.43, Memorandum of Opinion and Order Denying SunDance's Motion for SJ and Granting EEOC's Motion for SJ (the "O&"O), Apx.188.) The district court simultaneously entered judgment for the EEOC. (R.44, Judgment Entry Order, Apx.212.) SunDance then appealed. (R.46, Notice of Appeal, Apx.215.) B. Statement of Facts SunDance is a Connecticut corporation doing business in at least 35 states, including Ohio. (R.7, Answer pg.2 ¶ 4). In and around the beginning of 1999, SunDance terminated a multitude of employees as part of a company-wide reduction- in-force ("RIF"). (R.24, McNett Aff. pg.1 ¶ 2, Apx.29.); (R.25, Smith Decl. Docs.321-23, Apx.81-83.); (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66.) SunDance offered severance benefits to all employees terminated in the RIF. (R.25, Smith Decl. Doc.321, Apx.81.) However, SunDance's severance policy explicitly states that SunDance's offer of severance does not apply to employees who "[h]ave not signed an approved Separation Agreement and General Release" (the "Release") (R.25, Smith Decl. Doc.321, Apx.81); (R.25, Smith Decl. Doc.322, Apx.82.) The Release included the following language: Severance Pay: . . . . Releasor promises . . . not to make any statements or take any actions that would reflect negatively upon [SunDance]. Failure of the Releasor to comply with this agreement will result in the immediate repayment by Releasor of the total severance amount to [SunDance]. General Release: In consideration of the payment made to Releasor by [SunDance], Releasor . . . does hereby voluntarily and knowingly release [SunDance] . . . from any and all claims . . . arising before the execution of this Release . . . . This . . . includes but is not limited to any claims which Releasor may have . . . under federal or state law prohibiting employment discrimination . . . including without limitation [Title VII and the ADA] . . . . Releasor . . . expressly agrees that she will not . . . pursue any proceeding, action, complaint, claim, charge, or grievance against [SunDance] . . . in any administrative, judicial or other forum whatsoever . . . . Return of Severance Pay: . . . [If] this Agreement [is] violated, Releasor agrees that [SunDance] shall have the right to . . . injunctive relief and damages . . . including the right to the return of the entire amount of the consideration paid by [SunDance] under this Agreement, plus any other damages proven, including reasonable attorneys' fees and costs. Releasor further expressly agrees that if any portion of this Agreement and the Release incorporated herein is ruled to be unenforceable as the result of a challenge brought by the Releasor to the Agreement's or release's validity, then Releasor shall return to the Company the entire amount of consideration paid hereunder. . . . Confidentiality: Releasor agrees to hold strictly in confidence the terms, amount, and fact of this Release. Releasor will not disclose any such information, orally or in writing, to anyone else . . . . (R.25, Salsbury Decl. Ex.A-1 Docs.90-93, Apx.68-70 (emphasis added).) Elizabeth Salsbury, who worked in SunDance's North Olmsted, Ohio office as a speech-language pathologist, was discharged on March 1, 1999, in conjunction with SunDance's company-wide RIF. (R.24, McNett Aff. pg.1 ¶ 3, Apx.29-30); (R.25, Salsbury Decl. pgs.1-2 ¶¶ 1, 2, Apx.62-63); (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66.) Under SunDance's severance policy, Salsbury was entitled to 80 hours of severance pay. (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66); (R.25, Smith Decl. Doc.323, Apx.83.) SunDance required Salsbury to sign the Release to get this benefit. (R.25, Salsbury Decl. pg.2 ¶ 3, Apx.63); (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66 (". . . [Y]ou will receive 80 hours of severance pay . . . after you sign a Separation Agreement and General release . . .")); (R.25, Salsbury Decl. Ex.A-1 Doc.88, Apx.67); (R.25, Salsbury Decl. Ex.A-1 Doc.90, Apx.68.) Salsbury believed that SunDance discriminated against her on the basis of her sex by denying her a promotion in 1998 and then including her in the RIF in 1999. (R.25, Salsbury Decl. pg.2 ¶ 5, Apx.63); (R.25, Salsbury Decl. Ex.A-2 Charge of Discrimination, Apx.72.) She thus wanted to file a charge of sex discrimination against SunDance with the EEOC. (R.25, Salsbury Decl. pg.2 ¶ 5, Apx.63.) Because the Release would prohibit Salsbury from reporting this alleged discrimination to the EEOC – and would subject her to a suit by SunDance to reclaim the severance benefits and for lawyers' fees and costs if she did file an EEOC charge – Salsbury believed she could not sign the Release. (R.25, Salsbury Decl. pg.2 ¶¶ 5, 6, Apx.63.) Salsbury inquired of SunDance's Human Resources department whether she could strike out the part of the Release prohibiting her from filing a charge with the EEOC. (R.25, Salsbury Decl. pg.2 ¶ 7, Apx.63.) A SunDance representative informed Salsbury she could not alter the agreement, and told her that most terminated employees simply signed the Release to get their severance payment. (R.25, Salsbury Decl. pgs.2-3 ¶ 7, Apx.63-64.) Salsbury decided not to sign. (R.25, Salsbury Decl. pg.3 ¶ 8, Apx.64.) Instead, on April 20, 1999, she filed a charge of sex discrimination with the EEOC challenging SunDance's failure to promote her and its decision to discharge her. (Id.); (R.25, Salsbury Decl. Ex.A-2 Charge of Discrimination, Apx.72.) Salsbury's charge also stated: I was . . . asked to sign a separation agreement, general release and covenant not to sue agreement in order to get a lump sum payment of 80 hours. I did not sign this release because I believe it violates the Laws administered by the EEOC. (R.25, Salsbury Decl. Ex.A-2 Charge of Discrimination, Apx.72.) In a Determination Letter dated September 30, 1999, the Commission found that there was not reasonable cause to believe that SunDance had refused to promote and/or had terminated Salsbury because of her sex. (R.24, McNett Aff. Ex.A-3 Doc.12, Apx.38.) However, the EEOC did find that the Release "may produce a chilling effect, thereby undermining the Commission's ability to enforce the ADEA, Title VII, the EPA and the ADA," and that parts of the Release "may intimidate or have the effect of intimidating employees and create disincentives for them to cooperate with EEOC in safeguarding the public interest." (R.24, McNett Aff. Ex.A- 3 Doc.13, Apx.39.) The EEOC thus concluded there was reasonable cause to believe that by asking Salsbury to sign the Release, SunDance violated the anti-retaliation provisions of the EPA, Title VII, the ADEA, and the ADA.<3> (Id.) C. The District Court's Decision In its decision granting the EEOC's motion for summary judgment, the district court noted that the EEOC "is responsible for bringing actions for the public good, such as the one in this case, on behalf of a group of people subject to a retaliatory policy." (R.43, O&O pg.22, Apx.209.) The district court recognized that "the thrust of the EEOC's argument is that the SunDance Separation Agreement is facially retaliatory" – that is, that it is a per se violation of the anti-retaliation provisions of the EPA, Title VII, the ADEA, and the ADA. (R.43, O&O pgs.8, 10, 11, 12, 17, 18, 23, Apx.195,197,198,199,204,205.) The district court then explained that the gist of this "facial retaliation claim is that even before either party takes any action (engaging in protected activity or adverse employment action), the policy by its terms authorizes the employer to take adverse employment action once an employee does engage in some protected activity." (R.43, O&O pg.17 n.8, Apx.208.) Here, the district court pointed out, the Release allows SunDance to seek injunctive relief and damages – including the return of the severance payment – if signing employees violate the terms of the Release by filing a charge with the EEOC. (R.43, O&O pg.18, Apx.205.) The district court concluded, relying primarily on EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992), that this was a classic case of a per se retaliatory employment practice. (R.43, O&O pg.19, Apx.206.) According to the district court, "when an employer requires an employee as part of a separation agreement to give up her right to file a charge with the EEOC in exchange for severance benefits, the employer violates the anti- retaliation provisions of the laws enforced by the EEOC." (R.43, O&O pg.20, Apx.207.) The District Court held that "the provision of the SunDance Separation Agreement conditioning severance payments on an employee agreeing not to file a charge with the EEOC is facially retaliatory in violation of the ADA, ADEA, EPA, and Title VII."<4> (R.43, O&O pg.20, Apx.207.) Accordingly, the district court ordered relief for Salsbury and other "similarly situated" individuals. The relief the district court ordered was essentially the same as the relief the EEOC requested in its Complaint. The district court ordered that SunDance: • is "permanently enjoined from engaging in the institution, maintenance and/or management of the portion of the April 1999 SunDance Separation Agreement, or any other similar plan, requiring all employees and former employees to waive their right to file a charge with the EEOC or participate in an EEOC investigation or proceeding" (R.43, O&O pg.23, Apx.210); (R.44, Judgment Entry Order pg.1, Apx.212); • is "permanently enjoined from retaliating because of an employee or former employee's right to file a charge with the EEOC or participate in an EEOC investigation or proceeding" (R.43, O&O pg.23, Apx.210); (R.44, Judgment Entry Order pg.2, Apx.213); • must "institute and carry out policies, practices and programs which provide equal employment opportunities for employees who wish to file charges with the EEOC or participate in an EEOC investigation or proceeding" (R.43, O&O pg.23-24, Apx.210-11); (R.44, Judgment Entry Order pg.2, Apx.213); • must "make whole [Salsbury] and other similarly situated employees" and "reform the April 1999 SunDance Separation Agreement to expressly permit all employees and former employees to file charges with the EEOC and participate in EEOC investigations or proceedings without losing their severance pay" (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.2, Apx.213); • must "pay to [Salsbury] and other similarly situated employees any and all withheld severance pay with prejudgment interest" (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.2, Apx.213); and • must "deliver a corrective notice with a reformed [Release] to [Salsbury] and similarly situated employees." (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.2, Apx.213.) The District Court further ordered that "[a]ll limitations periods for filing a charge or claim are tolled and will run anew from the date of actual delivery of the reformed notice." (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.2, Apx.213.) The District Court also ordered SunDance to pay the EEOC's costs. (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.3, Apx.214.) SUMMARY OF ARGUMENT The district court correctly concluded that SunDance's Release constitutes a per se violation of the anti-retaliation rules found in all four federal employment discrimination laws. The primary purpose for these anti-retaliation rules is to preserve, for victims of and witnesses to discrimination, "unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337 (1997). These anti-retaliation provisions thus prohibit employers from taking adverse actions against employees or former employees who oppose unlawful discrimination or participate in EEOC proceedings (e.g., file an EEOC charge or testify in an EEOC investigation). The district court correctly ruled that the Release in this case, like the practice at issue in EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992), embodies an employer policy which conditions benefits on the waiver of the right to engage in these statutorily-protected activities, and as such is per se retaliatory and constitutes a facial violation of all four federal anti- discrimination laws. On its face, SunDance's Release is a preemptive strike against future protected activity. By design, it seeks to prevent discharged employees from ever filing charges with the EEOC and participating in any EEOC proceeding. Under the Release, SunDance refuses to pay severance benefits unless and until putative recipients relinquish their right to oppose unlawful employment practices and participate in administrative anti-discrimination proceedings (e.g., by filing charges of discrimination with the EEOC). Under the Release, SunDance threatens retribution – in the form of a lawsuit for return of severance and additional damages, attorneys' fees, and costs – should a signatory subsequently engage in such protected activity. SunDance is thus using the Release – the fear of economic retaliation – to chill discharged employees from reporting to the United States government alleged violations of the federal civil rights employment laws. It is clear from the statutory language of the anti-retaliation clauses, the legislative purposes underlying these rules, and case law that this type of preemptive retaliatory policy is illegal. The only Circuit decision to address this issue, the Seventh Circuit's opinion in Board of Governors, held as much. SunDance's attempts to distinguish Board of Governors are unconvincing. SunDance argues, for example, that Board of Governors is inapposite because it dealt with a "bargained for employment benefit – the right to file a grievance pursuant to a collective bargaining agreement." Yet the Supreme Court made clear in Hishon v. King & Spalding, 467 U.S. 69, 75 (1984), that the fact that SunDance was under no obligation to pay severance at all does not free it to do so on a discriminatory basis. SunDance also claims that Board of Governors was a classic "retaliation" case – not what SunDance calls a "pretaliation" case. This misreads Board of Governors. The Seventh Circuit there clearly was concerned with the very existence of a retaliatory policy – not just with how the policy was actually implemented in any particular case. Board of Governors ruled that a policy that preemptively permits prospective punishment violates, on its face, the anti-retaliation laws. The Release contains such a policy. SunDance is grasping at straws in arguing that the district court erred because the statutes make no mention of and do not define "per se" retaliation or "facial" violations. The plain text of the ADEA (at 29 U.S.C. § 626(f)(4)) and the ADA (at 42 U.S.C. § 12203(b)) makes it illegal for employers to use a waiver like the Release to interfere with or threaten an employee's exercise or enjoyment of statutorily protected rights, such as the right to file a charge and participate in EEOC proceedings. SunDance ignores this statutory language. In insisting that the statutes must specifically provide for "per se" or "facial" retaliation, SunDance also reads the other anti-retaliation rules far too restrictively. Indeed, the word "retaliation" does not appear in the statutes, either. Moreover, the familiar concept of "facial" discrimination is well established in fair employment jurisprudence. See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 732 (2003); Nguyen v. Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). These terms embody a descriptive tool helpful in the identification of discriminatory conduct. The fact that these words are not explicitly referenced in statutory provisions is immaterial. In short, given the plain language of the anti-retaliation statutes, the legislative purposes and public policy underlying these rules (the critical need to ensure that employees remain free to report unlawful employment practices to law enforcement agencies), and the sound reasoning from Board of Governors, this Court should find that provisions of the Release here are illegal. It should therefore affirm the district court's grant of summary judgment. This Court should also find that the district court's relief order was not an abuse of discretion. District courts have broad latitude to fashion appropriate equitable relief to remedy discrimination. SunDance contends that Salsbury waived her right to file any lawsuit against SunDance, and that the district court exceeded the scope of its authority by tolling the statute of limitations for "claims." However, the district court never decided whether the Release constituted a valid waiver of the right to file all lawsuits against SunDance (only that the non-retaliatory part of the Release was enforceable to the extent permitted by law). That was never an issue in this case and can always be raised by SunDance later in a more appropriate forum – as a defense to any signatory-initiated lawsuit. This Court should therefore decline SunDance's invitation to reverse this part of the district court's relief order tolling the statute of limitations for "claims," and should instead affirm the relief order in its entirety. ARGUMENT A. Standard of Review This Court reviews a district court's grant of a motion for summary judgment de novo. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005). In conducting this review, this Court applies the same summary judgment standard the district court used. Minadeo v. ICI Paints, 398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and affidavits (if any) show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This Court reviews awards of injunctive relief in discrimination claims for abuse of discretion. Barnes v. City of Cincinnati, 401 F.3d 729, 738 (6th Cir. 2005). B. The District Court Correctly Held that SunDance Violated the Anti-Retaliation Rules in the EPA, Title VII, the ADEA, and the ADA The district court ruled that SunDance's Release on its face violates the anti- retaliation provisions of the EPA, Title VII, the ADEA, and the ADA. In its opening brief, SunDance argues that the EEOC is pushing a "novel theory" here – that the EEOC is seeking "to secure the judicial creation of a new species of employment discrimination for which there is no basis in existing federal employment discrimination statutes." SunDance Brief at 5, 7, 10; see also Amici Brief at 7. Contrary to SunDance's claims, there is nothing new or novel about the EEOC's legal theory. More importantly, there is ample statutory and judicial support for the district court's ruling that portions of SunDance's Release constitute a facially retaliatory employment policy and are per se violations of the anti-retaliation provisions of all four employment discrimination statutes. Accordingly, the district court's decision invalidating parts of the Release should be affirmed. The EPA, Title VII, the ADEA, and the ADA all prohibit employers from retaliating against an employee or former employee for engaging in protected activity. Such protected activity includes filing a charge, testifying, assisting, or participating in any manner in any EEOC investigation, proceeding, or hearing under one of the four principal employment discrimination statutes ("participation"). See 29 U.S.C. § 215(a)(3) (EPA); 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. §§ 623(d), 626(f)(4) (ADEA); 42 U.S.C. §§ 12203(a), (b) (ADA); see also Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542-43 (6th Cir. 2003) (analyzing the protections for "participation"); EEOC Compl. Man., Section 8: Retaliation at 8-1 § 8-I(A) (1998) (available at http://www.eeoc.gov/policy/docs/retal.html) ("EEOC Compl. Man.") (same). Protected activity also includes opposing a practice made unlawful under these laws ("opposition"). See 29 U.S.C. § 215(a)(3) (EPA); 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. §§ 623(d), 626(f)(4) (ADEA); 42 U.S.C. §§ 12203(a), (b); see also Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000) (discussing the protections for "opposition") (same); EEOC Compl. Man. at 8-1 § 8-I(A) (same). In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme Court explained that a "primary purpose" for these anti-retaliation protections is "[m]aintaining unfettered access to statutory remedial mechanisms." Id. at 346. Similarly, this Court, in EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993), recognized that in enacting these provisions, "Congress unmistakably intended to ensure that no person would be deterred from exercising his rights under [employment discrimination laws] by the threat of discriminatory retaliation." Id. at 543. According to this Court, the rationale for the anti-retaliation rules is to prevent "fear of economic retaliation from inducing employees quietly to accept [unlawful] conditions" – and to ensure that "all persons with information about unfair labor practices [remain] completely free from coercion against reporting them." Id. at 544, 545 (internal citations and quotations omitted). As the EEOC's compliance manual explains: Voluntary compliance with and effective enforcement of the anti- discrimination statutes depend in large part on the initiative of individuals to oppose employment practices that they reasonably believe to be unlawful, and to file charges of discrimination. If retaliation for such activities were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings. EEOC Compl. Man. at 8-1 – 8-2 § 8-I(A). Given this reasoning, the EEOC has long taken the position that employer policies that purport to restrict the protected activity of employees or former employees are a per se violation of the anti-retaliation rules found in all four principal federal employment discrimination laws. According to the EEOC's 1997 guidance on this issue: Some employers attempt to limit an individual's right to file a charge or participate in an EEOC proceeding by requiring him or her to sign an agreement in which s/he relinquishes these statutory rights . . . . Notwithstanding the format or context of the agreement in which such language might appear . . . [a]greements extracting such promises from employees . . . amount to separate and discrete violations of the anti- retaliation provisions of the civil rights statutes . . . . Agreements that attempt to bar individuals from filing a charge or assisting in a Commission investigation run afoul of the anti-retaliation provisions because they impose a penalty upon those who are entitled to engage in protected activity under one or more of the statutes enforced by the Commission. By their very existence, such agreements have a chilling effect on the willingness and ability of individuals to come forward with information that may be of critical import to the Commission as it seeks to advance the public interest in the elimination of unlawful employment discrimination. EEOC Notice 915.001: EEOC Enforcement Guidance on Non-Waivable Employee Rights under EEOC Enforced Statutes at §§ II, III(B) (1997) (available at http://www.eeoc.gov/policy/docs/waiver.html) ("EEOC's Enforcement Guidance") (emphasis added). The only Circuit court squarely to address this issue recognizes the illegality of such preemptive retaliation. In EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992), a collective bargaining agreement denied the right to grievance proceedings to any employee who also sought redress for the relevant wrong in a different forum – such as by filing an EEOC charge. The EEOC argued that this agreement, on its face, violated the ADEA's anti-retaliation clause. The Seventh Circuit agreed, reasoning that this policy allowed the employer to take an adverse action (terminating or withholding grievance proceedings) precisely because an employee engaged in protected activity (filing a charge). Such an anticipatory policy, the Seventh Circuit ruled, was facially retaliatory and thus violated the ADEA's anti-retaliation clause. Id. at 431; see also EEOC v. U.S. Steel Corp., 671 F. Supp. 351, 358-59 (W.D. Pa. 1987), rev'd on other grounds, 921 F.2d 489 (3d. Cir. 1990) (similarly finding that a policy premising the provision of enhanced retirement benefits on an employee's waiver of the right to file an EEOC charge and to participate in an EEOC proceeding is a per se violation of the ADEA's anti-retaliation rule; stating that "[t]he mere possibility that this [condition] would deter individuals from participating in any ADEA claims is sufficient to render it violative of [the ADEA's anti-retaliation clause] and public policy"). The district court in this case correctly found that the Seventh Circuit's reasoning was persuasive and wholly applicable here, and that SunDance's Release is the same sort of retaliatory employment policy invalidated by Board of Governors. The Release is a preemptive strike against participation in the charge-filing process and other law enforcement efforts designed to combat unlawful discrimination. On its face, it seeks to chill discharged employees from filing EEOC charges and from testifying, assisting, or participating in any manner in any EEOC-related investigation, proceeding, or hearing. The Release prohibits – on pain of suit for return of severance, damages, attorneys' fees, and costs – (1) "mak[ing] any statements or tak[ing] any actions that would reflect negatively upon [SunDance]"; (2) "pursu[ing] any proceeding, action, complaint, claim, charge, or grievance against [SunDance] in any administrative, judicial or other forum" with respect to "any acts or events . . . in the course of Releasor's dealings with [SunDance]"; and (3) disclosing "to anyone" anything about the "terms, amount, and fact" of the Release. SunDance thus effectively uses the fear of economic retaliation to coerce former employees into relinquishing their statutorily-protected rights to report and assist in the investigation of unlawful employment practices. SunDance refuses to provide a substantial economic benefit (to which all discharged employees are otherwise entitled) unless discharged employees sign away their right to file an EEOC charge and participate in EEOC proceedings. SunDance also threatens economic retribution against signatories who do engage in protected opposition or participation. For this reason, the district court correctly concluded that the contested portions of SunDance's Release are per se retaliatory and unenforceable. (R.43, O&O pg.20, Apx.207 ("Board of Governors makes clear that a policy conditioning an employment benefit on an employee's agreement not to file an EEOC charge constitutes facial retaliation" and "this [c]ourt [therefore] holds that the provision of the SunDance Separation Agreement conditioning severance payments on an employee agreeing not to file a charge with the EEOC is facially retaliatory in violation of the ADA, ADEA, EPA, and Title VII"). SunDance asserts that the EEOC is pursuing a "new statutorily unsupportable retaliation theory," and that there can be no such thing as per se retaliation or a facially retaliatory employment policy. SunDance Brief at 5, 7, 8; see also Amici Brief at 7, 13, 14. SunDance criticizes what it calls "pretaliation" – "retaliation that occurs even before the exercise of protected employee conduct." Id.; see also Amici Brief at 7, 14, 15. SunDance claims Board of Governors is inapposite. And SunDance contends that "if Congress had intended to proscribe [this] form of unlawful employment practice, it would have done so . . . ." Id. at 12. SunDance is wrong on all counts. Contrary to SunDance's contentions, there is nothing new or novel about the EEOC's legal theory here. In 1992 in Board of Governors, the Seventh Circuit explicitly adopted the EEOC's approach and ruled that an employment policy can indeed be per se retaliatory; see also U.S. Steel Corp., 671 F. Supp. at 358-59 (holding the same as far back as 1987). Moreover, SunDance's attempt to distinguish Board of Governors is unconvincing. SunDance alleges that Board of Governors is different because it "addresses a bargained for employment benefit – the right to file a grievance pursuant to the employee's collective bargaining agreement." SunDance Brief at 18. Here by contrast, SunDance claims, "[s]everance pay was not an earned, accrued or legally- required benefit of employment, but rather a voluntary offering that was entirely conditional upon her assenting to the Separation Agreement." Id.; see also Amici Brief at 8, 16, 18. SunDance thus seems to be saying that because SunDance did not have to offer Salsbury severance in the first place, it could premise the provision of this payment on any illegal condition it wanted to impose. The Supreme Court has explicitly rejected this view. In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Supreme Court held that "[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all." Id. at 75. In Board of Governors itself, the Seventh Circuit applied this Hishon rule and stated that even though the defendant "would be free not to provide grievance proceedings, the [ADEA's anti-retaliation rule] prohibits the employer from providing grievance proceedings only if an employee refrains from participating in activity that is protected under the ADEA." Board of Governors, 957 F.2d at 430. Thus, it is clearly established that even though SunDance did not have to offer severance benefits to Salsbury or anyone else, once it decided to provide these payments to all employees terminated in the RIF (i.e., once this benefit became "part and parcel of the employment relationship [albeit one that was ending]"), SunDance was bound to distribute this benefit in a non-retaliatory manner. SunDance's attempt to distinguish Board of Governors on this basis is thus unpersuasive and unavailing. The district court here specifically and appropriately found as much. (R.43, O&O pg.19, Apx.206 (noting that "SunDance ignores the portion of the Board of Governors opinion specifically recognizing that . . .the employer . . . could not administer the benefit in a discriminatory way" and providing that even though "SunDance did not have to offer its terminated employees severance packages, once it decided to do so, it could not do so in a retaliatory manner"). The district court's conclusion on this point should be affirmed. SunDance also attempts to distinguish Board of Governors by noting that in that case, "the retaliation contemplated by the statute (there the ADEA) actually materialized." SunDance Brief at 18. According to SunDance, Board of Governors found that the defendant had violated the ADEA's anti-retaliation provision only because an employee actually filed a charge and the defendant then actually terminated grievance proceedings. Id. at 18-19. That is, SunDance alleges, "Board of Governors [was] a retaliation case – rather than a ‘pretaliation' case" – and it thus "offers no support at all to the EEOC's position or the District Court's decision" finding facial retaliation. Id. at 19; see also Amici Brief at 7, 12, 14, 15. SunDance mischaracterizes Board of Governors. Even a cursory reading of Board of Governors reveals that the Seventh Circuit was concerned with the very existence of a retaliatory policy – not merely with how or whether the policy was actually implemented in any specific instance. See Board of Governors, 957 F.2d at 427 (emphasis added) (noting it was resolving a "retaliatory policy case[]"); id. at 429 (emphasis added) (stating "this case . . . concerns a discriminatory policy"); id. at 430 (emphasis added) (reviewing "the policy's legality"); id. (emphasis added) (analyzing whether the relevant provision of the "collective bargaining agreement is a retaliatory policy"). The Board of Governors court examined whether the policy in question had a potential and prospective chilling effect. See id. at 427 n.2 (emphasis added) (subjecting the questionable collective bargaining provision to "judicial scrutiny" in part because "the Board has not modified the policy to exclude future ADEA claimants"); id. at 430 (emphasis added) (expressing concern because the challenged policy "authorizes the Board to take an adverse employment action (termination of the in-house grievance proceeding) for the sole reason that the employee has engaged in protected activity (filing an ADEA claim)"); id. at 431 (emphasis added) (scrutinizing whether employee rights "would be . . . effectively stifled" and whether employees "would lose their right to grievance proceedings because they had filed ADEA claims"). The Seventh Circuit plainly held (and repeatedly emphasized throughout its opinion) that any such policy that preemptively permits prospective punishment – without more – – violates, on its face, the anti-retaliation laws. See id. at 429 (". . . a retaliatory policy constitutes a per se violation of [the ADEA's anti-retaliation clause]"); id. at 430 (". . . the Board adopted a policy which impermissibly discriminates against employees who file ADEA complaints"); id. (". . . if [the collective bargaining clause] authorized the Board to terminate grievance proceedings if and only if an employee filed an ADEA claim with the EEOC, that policy would be clearly discriminatory under [the ADEA's anti-retaliation rule]"); see also U.S. Steel Corp., 671 F. Supp. at 358-59 (emphasis added) (similarly invalidating an employment policy conditioning enhanced retirement benefits on a prospective waiver of statutory rights because, under this policy, an "individual might be deterred" and the policy "has the potential of deterring" protected opposition or participation; ruling that the "mere possibility that this [policy] would deter individuals from participating in any ADEA claims" rendered it invalid under the ADEA's anti-retaliation rule). The district court in this case accurately interpreted and applied Board of Governors. The district court pointed out, appropriately, that the holding in Board of Governors "is not based on the adverse action actually taken by the employer." (R.43, O&O pgs.19-20, Apx.206-07.) Rather, the district court recognized, "the court held the policy was, on its face, impermissibly retaliatory." (R.43, O&O pg.20, Apx.207.) SunDance ignores this important aspect of the Board of Governors decision and thus criticizes the district court for relying on that case. SunDance also criticizes the district court for concluding that parts of SunDance's Release are "facially retaliatory" even though this term is "not defined nor even mentioned in the applicable statutes." SunDance Brief at 13, 14-15. SunDance suggests that the anti-retaliation clauses are devoid of any "per se" policy language, and that Congress would have explicitly provided for the terms "facial retaliation" in the relevant statutory texts if it had intended to prohibit such an employment practice. Id. at 12. SunDance argues that the district court's ruling is therefore "contrary to well-settled maxims of statutory interpretation, and should be vacated, as it has no textual basis." Id. This is simply not true. The text of the relevant statutes themselves – as well as an abundance of decisional law – compel a different conclusion. The ADA expressly provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected [under the ADA]." 42 U.S.C. § 12203(b) (emphasis added); see also 29 C.F.R. § 1630.12(b) (same). This sweeping statute, on its face, makes it illegal for SunDance to "coerce," "intimidate," "threaten" or "interfere" – in the past, currently, or prospectively – with respect to an employee's right to oppose unlawful practices or participate in statutory proceedings. By its plain terms, this provision manifests an intent to protect individuals from threatening or coercive conduct that might tend to interfere with the exercise of rights established under the ADA. Notably, this ADA provision parallels the "interference" provisions in other federal statutes. For example, the National Labor Relations Act ("NLRA") contains a provision making it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the Act]." 29 U.S.C. § 158(a)(1). This provision has been consistently interpreted as applying to any conduct that "tends to chill an employee's freedom to exercise his [statutory] rights." Cal. Acrylic Indus., Inc. v. NLRB, 150 F.3d 1095, 1099 (9th Cir. 1998). This Court has held that this "interference" provision is violated if the employer's action, when viewed from the employee's point of view, has "a reasonable tendency to coerce." Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651, 659 (6th Cir. 2005); see also Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001) (employer's statement violates the NLRA's "interference" provision if "considering the totality of the circumstances, the statement has a reasonable tendency to coerce or interfere with [statutory] rights"). In particular, the provision reaches mere threats to take adverse actions against employees for the exercise of their statutory rights. Dayton Newspapers, 402 F.3d at 659 ("[Threatening employees with . . . adverse consequences . . . are well-established violations"); see also Tasty Baking Co., 254 F.3d at 124-25 (threats to take reprisals against employees who participated in union activities); NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20 (1969) (threat to shut down plant if employees form a union); NLRB v. Coca-Cola Co. Foods Div., 670 F.2d 84, 85-86 (7th Cir. 1982) (threat to "come after" employee if he discussed his grievance with other employees). Likewise, the Family and Medical Leave Act ("FMLA") contains a provision making it unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" by the Act. 29 U.S.C. § 2615(a)(1). That provision has also been read to apply to conduct that "‘tends to chill' an employee's willingness to exercise" statutory rights. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Given the similarity in the language of the "interference" provisions of these statutes and the language of the ADA's "interference" provision, there is every reason to believe that Congress intended the same broad protection to apply under the ADA's "interference" provision. See generally Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S. 427, 428 (1973) (similarity of statutory language is strong indication that statutes should be interpreted in the same manner). Indeed, the ADA's legislative history indicates that Congress was well aware of the existing standards under similar "interference" provisions and intended the "interference" provision to be applied in accordance with those standards. The issue is explicitly addressed in a Committee Report, which states that the "interference" provision should be interpreted in accordance with the regulatory interpretation "given by the Department of Housing and Urban Development to a similar provision in the Fair Housing Act." H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 421. Like the ADA, the Fair Housing Act ("FHA") makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, . . . any right granted or protected by [the Act]." 42 U.S.C. § 3617. The implementing regulation referenced in the Committee Report defines unlawful conduct under the FHA provision to include such things as "[t]hreatening an employee or agent with dismissal or an adverse employment action," "[i]ntimidating or threatening any person," and "[c]oercing a person, either orally or in writing, or by other means." 24 C.F.R. § 100.400. This regulation, interpreting the almost identical language of the FHA's "interference" provision, reaches a broad range of threatening or coercive conduct. The regulation comports with the broad interpretation that this Court has given to the FHA's "interference" provision. See, e.g., Mich. Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994) (internal quotations omitted) (holding that the FHA's "interference" provision "has been broadly applied to reach all practices which have the effect of interfering with the exercise of rights under the federal fair housing laws"). It is clear from the text and history of the ADA that Congress intended the ADA's "interference" provision to be similarly broad in scope. This Release obviously contravenes this ADA provision. It strong-arms employees facing impending discharge into signing away their right to engage in opposition and participation by offering a conditional substantial monetary inducement at a time of certain economic hardship, and then promises retribution if signatories subsequently pursue protected activity. It also empowers SunDance to sue employees for a return of severance, damages, attorneys' fees, and costs if a signatory files an EEOC charge or participates in an EEOC proceeding. By its very terms, then – by explicit design – the Release "coerces," "intimidates," "threatens," and "interferes" with the exercise and enjoyment of employees' protected statutory rights. The Release is thus illegal under the plain language of the ADA. See Brown v. City of Tuscon, 336 F.3d 1181, 1193 (9th Cir. 2003) (providing that 42 U.S.C. § 12203(b) "clearly prohibits" an employer "from threatening an individual with transfer, demotion, forced retirement unless the individual foregoes a statutorily protected [right]"); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 222-23 (2d Cir. 2001) (recognizing a potential cause of action under this ADA anti-retaliation rule if an employer threatens an employee for asking for a reasonable accommodation); cf. Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 788-89 (3d Cir. 1998) (noting that this particular ADA provision "arguably sweeps more broadly" than other relevant anti-retaliation clauses). Similarly, the ADEA specifically provides that "[n]o waiver agreement may affect the Commission's rights and responsibilities to enforce [the ADEA]" and "[n]o waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission." 29 U.S.C. § 626(f)(4). The Commission's ADEA regulations implementing this provision state that "[n]o waiver agreement may include any provision imposing any condition precedent, any penalty, or any other limitation adversely affecting any individual's right to . . . [f]ile a charge or complaint, including a challenge to the validity of the waiver agreement, with EEOC, or . . . [p]articipate in any investigation or proceeding conducted by EEOC." 29 C.F.R. § 1625.22(i)(3). SunDance's Release clearly violates these rules by imposing a condition precedent/penalty/limitation on protected rights (by withholding severance payment until the employee does sign, and by punishing signatories who subsequently engage in protected activity by requiring them to return the entire amount of the severance benefit and risk being sued for additional damages, fees, and costs). These rules should invalidate SunDance's retaliatory policy. Cf. Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 290 (3d Cir. 2003) (suggesting that this "statutory language [i.e., 29 U.S.C. § 626(f)(4)] can be read to mean . . . that any attempt by an employer to enforce a contractual provision prohibiting an employee from filing a charge or participating in an EEOC investigation would be ineffectual"); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 118 n.7 (1st Cir. 1998) (indicating that waivers that do not comport with 29 U.S.C. § 626(f)(4) are "deficient"). SunDance essentially ignores this ADEA and ADA statutory text. In addition, in insisting the relevant anti-retaliation rules must specifically provide for "per se" or "facial" retaliation, SunDance reads these protective provisions far too restrictively. Courts routinely find that particular employment policies are "facially" discriminatory, notwithstanding that these descriptive terms do not appear in the relevant employment discrimination statutes. Indeed, the word "retaliation" itself does not appear in the EPA, Title VII, the ADEA, or the ADA. SunDance's reasoning would create the absurd result that all four of these statutes permit "retaliation." The case law – including Supreme Court jurisprudence – is replete with examples that demonstrate the fallacy of SunDance's reasoning. See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 732 (2003) (recognizing that "laws and policies" can be "facially discriminatory"); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (explaining that employers will be liable for discrimination if they "relied upon a formal, facially discriminatory policy requiring adverse treatment of employees"); Int'l Union, UAW v. Johnson Controls, 499 U.S. 187, 198 (1991) (holding that an employer's policy was "facially discriminatory"); Lorance v. AT&T Techs., Inc., 490 U.S. 900, 912 (1989), superseded by statute on other grounds (also clearly recognizing "facially discriminatory" policies as actionable); Conn. v. Teal, 457 U.S. 440, 455 (1982) (criticizing the application of a "facially discriminatory" policy); Everson v. Mich. Dep't of Corr., 391 F.3d 737, 747 (6th Cir. 2004) (noting the defendant "concedes it has adopted a facially discriminatory plan"); Nguyen v. Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (explaining that "a facially discriminatory employment policy . . . is direct evidence of discriminatory intent"); EEOC v. Joe's Stone Crab, 220 F.3d 1263, 1282 (11th Cir. 2000) (finding hiring practices to be "facially discriminatory"); Frank v. United Air Lines, Inc., 216 F.3d 845, 854 (9th Cir. 2000) (concluding that an airline's weight policy was "facially discriminatory"); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 131 (3d Cir. 1996) (holding that staffing practices were "facially discriminatory"). Finding that an employment practice is "facially discriminatory" and/or "per se discrimination" is clearly a routine analytical approach courts use to identify actionable conduct. Thus absence of the words "facially discriminatory" – or, in this case, "per se retaliation" – in the relevant statutes is immaterial. Given their critical role in "[m]aintaining unfettered access to statutory remedial mechanisms," Robinson, 519 U.S. at 346, all prohibitions on illegal retaliation must be construed to effectuate their remedial purpose. As this Court in Ohio Edison Co. ruled, "the antiretaliation provision of an employment statute should not be construed narrowly if it defeats the purpose of the statute." Ohio Edison Co., 7 F.3d at 545; see also id. at 544 (noting that "the majority of courts, including the Supreme Court, have been willing to construe Title VII and companion provisions under the [EPA] and the [ADEA] broadly in order not to frustrate the purpose of these Acts"). Indeed, this Court pointed out: Courts have routinely adopted interpretations of retaliation provisions in employment statutes that might be viewed as outside the literal terms of the statute in order to effectuate Congress's clear purpose in proscribing retaliatory activity. Contrary to defendant's assertions, courts have frequently applied the retaliation provisions of employment statutes to matters not expressly covered by the literal terms of these statutes where the policy behind the statute supports a non-exclusive reading of the statutory language. Id. at 545. The rationale behind the anti-retaliation provisions – safeguarding the public interest by ensuring that individuals remain free to report suspected discrimination to the EEOC without fear of retribution – would certainly support applying these anti- retaliation rules to invalidate the offensive parts of the Release in this case. Indeed, given the critical public interest at stake, courts have routinely concluded that waiver provisions like the ones challenged here are void as against public policy. See, e.g., U.S. Steel Corp., 671 F. Supp. at 358-59 (ruling that a policy conditioning enhanced retirement benefits on waivers of the right to file charges or participate in EEOC proceedings is per se retaliatory and violates public policy); accord EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999) ("[A]n individual may not contract away her right to file a charge with the EEOC, as such contracts are void as against public policy."). The EEOC "is guided by the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement." Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318, 326 (1980). The primary way in which the EEOC vindicates the public interest is by identifying and investigating allegations of discrimination, and then conciliating and litigating (if necessary) to correct unlawful employment practices. See Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368 (1977) (the EEOC "is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion"). Charges, which notify the EEOC of potential discrimination, are critical to the EEOC's work. See EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984) (noting that the very function of a charge "is to place the EEOC on notice that someone . . . believes that an employer has violated the [law]"). Accordingly, the EEOC's 1997 Enforcement Guidance provides that: A strong public policy also prohibits interference with the right to file a charge with EEOC . . . . This notice to the EEOC serves to trigger law enforcement proceedings by the EEOC that include an investigation and, if there is a finding of discrimination, may include conciliation and litigation. Thus, every charge filed with the EEOC carries two potential claims for relief: the charging party's claim for relief, and the EEOC's claim to vindicate the public interest in preventing employment discrimination. EEOC's Enforcement Guidance at § III(A) (internal quotations and citations omitted). Similarly, EEOC investigations are central to the accomplishment of the EEOC's mission, as well. Cf. Shell Oil Co., 466 U.S. at 69 (noting "it is crucial that the Commission's ability to investigate . . . discrimination not be impaired"); EEOC v. Waffle House, 534 U.S. 279, 296 n.11 (2002) (stating "[w]e have generally been reluctant to approve rules that may jeopardize the EEOC's ability to investigate . . . cases"). Thus, the EEOC's Enforcement Guidance also concludes that: A strong public policy prohibits interference with governmental law enforcement activities. Agreements that prevent employees from cooperating with EEOC during enforcement proceedings interfere with enforcement activities because they deprive the Commission of important testimony and evidence needed to determine whether a violation has occurred. Furthermore, insofar as such agreements make it more difficult for the Commission to prosecute past violations, an atmosphere is created that tends to foster future violations of the law . . . . EEOC's Enforcement Guidance at § III(A) (internal quotations and citations omitted). Recognizing this, numerous other courts (in addition to this Court, in Frank's Nursery & Crafts) have concluded that waivers of the right to file EEOC charges or to participate in EEOC proceedings are void as against public policy. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (noting that even if an individual agreed to submit an employment discrimination claim to arbitration, the individual "will still be free to file a charge with the EEOC" – acknowledging the important public interest implicated in charge filing); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1536 (2d Cir. 1996) (stating that the EEOC's "authority cannot be altered by a waiver of the rights of a private party"); U.S. Steel Corp., 671 F. Supp. at 358-59 (such waivers violate public policy). Most notably, in EEOC v. Cosmair, Inc., L'Oreal Hair Care Division, 821 F.2d 1085 (5th Cir. 1987), an employee signed a broad release in exchange for severance benefits. The waiver did not explicitly forbid the employee from filing a charge with the EEOC. Nevertheless, when the employee did file a charge, the employer stopped paying the severance it had agreed to pay the employee under the waiver. The Fifth Circuit pointed out that the purpose of a charge is to inform the EEOC of possible discrimination, and thus found that "[a]llowing the filing of charges to be obstructed by enforcing a waiver of the right to file a charge could impede EEOC enforcement of the civil rights laws." Id. at 1089-90. According to the Cosmair court, "an employer and an employee cannot agree to deny to the EEOC the information it needs to advance [the] public interest." Id. at 1090. Therefore, the Fifth Circuit ruled, a "waiver of the right to file a charge is void as against public policy." Id.; see also Wastak, 342 F.3d at 291-92 (analyzing and adopting Cosmair's reasoning on this public policy point); Faris v. Williams WPC-I, Inc., 332 F.3d 316, 321 (5th Cir. 2003) (citing Cosmair and also indicating that any waiver of the right to file an EEOC charge is void as against public policy); American Airlines, Inc., v. Cardoza- Rodriguez, 133 F.3d 111, 118 n.7 (1st Cir. 1998) (same); McCall v. U.S. Postal Serv., 839 F.2d 664, 666 n.* (Fed. Cir. 1988) (same); Callicotte v. Carlucci, 698 F. Supp. 944, 946-47 (D.D.C. 1988) (same). Similarly, in EEOC v. Astra, Inc., 94 F.3d 738 (1st Cir. 1996), an employer entered into settlement agreements which (among other things) barred the employees from filing EEOC charges, assisting others who filed charges, and discussing the incidents giving rise to the settlement (and/or disclosing the terms of the settlement itself) with anyone. The EEOC attempted to investigate charges of sexual harassment against the company and encountered resistance and reluctance from various employees/witnesses who had entered into these settlement agreements. On these facts, the First Circuit concluded that "clearly, if victims of or witnesses to [employment discrimination] are unable to approach the EEOC or even to answer its questions, the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered." Id. at 744. Therefore, "any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest." Id. An "employee's right to communicate with the EEOC must be protected not to safeguard the settling employee's entitlement to recompense but instead to safeguard the public interest." Id. at n.5. This "is not a right that an employer can purchase from an employee, nor is it a right that an employee can sell to her employer." Id. In short, any "waiver of the right to assist the EEOC offends public policy under both the ADEA and Title VII." Id.; see also id. at 745 (ruling that "non-assistance covenants which prohibit communication with the EEOC are void as against public policy"); American Airlines, 133 F.3d at 118 n.7 (citing Astra and indicating the same). Here, the Release at issue unquestionably interferes with the EEOC's enforcement efforts. It is expressly aimed at preventing signatories from filing charges (which the employer in Cosmair wanted to do) or sharing information about SunDance's employment practices with the EEOC (as the company in Astra attempted). These Release provisions choke the free flow of information between potential victims of (or witnesses to) discrimination and the EEOC. These offensive portions of the Release thus violate public policy. Surprisingly, SunDance has essentially admitted as much. See SunDance Brief at 20 (acknowledging that, under the reasoning in Cosmair, any waiver of the right to file a charge is void as against public policy). By contrast, the amici argue the Release is a good thing. They praise the wisdom of charge-filing bans, assert that these retaliatory releases are good for business, and strongly suggest the more rights employees want to relinquish, the better. See Amici Brief at 3-4, 21-22 (calling for "employer closure" and greater "comprehensiveness of releases" and admitting that employers specifically want to preclude employees from bringing claims in the administrative forum). The amici indicate that the district court's decision and the EEOC's position here "run[] counter to a strong federal policy – the policy favoring voluntary resolution of employment-related disputes." Amici Brief at 9. The amici even assert this is best for the EEOC. Id. at 10, 23 (advocating that charge-filing bans "afford a means of satisfactorily resolving potential disputes that otherwise could clog the courts and administrative agencies, including the EEOC"). And they conclude that if this Court does not allow employers to bar protected activity, employers will simply stop offering severance packages and settlements altogether. Id. at 10, 23 ("Employers are less likely to offer such agreements, however . . . if the agreements cannot lawfully provide closure against the possibility that the signers will file EEOC charges"). Indeed, the amici even assert (quite ironically, given the facts of this case), that the "ultimate victims" of the district court's decision "will be individual employees who . . . will not be offered the option to gain substantial financial benefits when their jobs are terminated." Id. at 23. In sum, the amici's position amounts to this: Unless employers are allowed to continue violating (what several circuits, including this Court, have said is) the law, they will begin to treat even less favorably the very employees those laws were designed to protect. Unless this Court renounces the EEOC's long-held view that charge-filing bans are bad for the public interest – and unless companies can get "closure" through more comprehensive releases – the public interest – and the EEOC itself – will suffer. The EEOC fails to see how a court could or why a court should conclude that enforcing a policy or private agreement which deprives a law enforcement agency of information essential to its law enforcement mission is in the best interests of the law enforcement agency itself. (Would a court enforce a private agreement under which a former employee promises his former employer – in exchange for consideration – never to divulge to the FBI or the SEC information about potential white collar crimes witnessed in the course of employment? Put more starkly, would a court enforce a similar agreement precluding an employee from reporting a more violent workplace crime (such as an assault or even rape) to the local authorities?) The amici's "policy" reasons for reversing the district court's decision do not withstand scrutiny. See Town of Newton v. Rumery, 480 U.S. 386, 392 (1987) (footnote omitted) (explaining that "a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement"); Cosmair, 821 F.2d at 1091 ("The public interest in private dispute settlement" is simply "outweighed by the public interest in EEOC enforcement"); Astra, 94 F.3d at 744-45 ("Thus, weighing the significant public interest in encouraging communication with the EEOC against the minimal adverse impact that opening the channels of communication would have on settlement, we agree wholeheartedly with the lower court that non-assistance covenants which prohibit communication with the EEOC are void as against public policy."); cf. Howlett v. Holiday Inns, Inc., 120 F.3d 598, 602-03 (6th Cir. 1997) (noting that because writing releases complying with employment discrimination laws "should not be difficult for an employer" the employer "can hardly complain about the inequity of losing the benefit of its bargain" when it fails to do so). Given the compelling public policy underlying the anti-retaliation rules, it is irrelevant (contrary to SunDance's claims) that the anti-retaliation rules do not contain the words "per se retaliation" or "facially retaliatory." As the district court recognized, the EEOC's legal theory – and the district court's conclusion that SunDance's Release is facially, per se retaliatory – effectuates the legislative purpose of the anti-retaliation rules, comports with this Court's liberal approach to construing these clauses, and is consistent with the only other Circuit court case on this issue. Accordingly, this Court should follow the Seventh Circuit's Board of Governors lead, reject SunDance's overly-restrictive reading of the anti-retaliation laws, and affirm the district court's finding that the Release is a per se violation of the anti-retaliation rules. C. The District Court Appropriately Exercised Its Broad Discretion to Award Relief Required to Eliminate the Effects of Illegal Retaliation SunDance argues that even if portions of its Release are invalid and unenforceable, the district court abused its discretion in its injunctive relief. SunDance Brief at 8, 9. SunDance asserts that because the district court invalidated only the parts of the Release that are retaliatory (i.e., that preclude signatories from filing EEOC charges or participating in EEOC proceedings), the district court's order tolling limitations periods for filing any claim is untenable. SunDance Brief at 25. According to SunDance, "[t]olling the limitations period for claims that admittedly have been waived is entirely illogical." Id. at 26. We disagree. Courts have extremely broad authority to fashion appropriate equitable relief for violations of anti-discrimination laws. See, e.g., 29 U.S.C. § 216(b) (EPA); 42 U.S.C. § 2000e-5(g)(1) (Title VII); 29 U.S.C. § 626(b) (ADEA); 42 U.S.C. §§ 12117(a), 12203(c) (ADA). The Supreme Court, in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), explained that: It is . . . the purpose of [federal employment discrimination law] to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. . . . [In fact] the (district) court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Id. at 418-20 (internal citations and quotations omitted); see also Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 763-64 (1976) ("To effectuate this ‘make whole' objective, Congress . . . vested broad equitable discretion in the federal courts to ‘order such affirmative action as may be appropriate, which may include . . . any other equitable relief as the court deems appropriate.'"). Similarly, as this Court pointed out in Frank's Nursery & Crafts: . . . [U]pon a finding of any intentional employment discrimination, a district court possesses broad discretion to craft an injunction that will ensure the employer's compliance with the law . . . . Thus, the EEOC may obtain such general injunctive relief, under the equitable discretion of the district court, even where the EEOC only identifies one or a mere handful of aggrieved employees . . . . Indeed, the EEOC may seek injunctive relief to correct discrimination uncovered during its investigation of the charge of just one individual . . . . The EEOC may obtain a permanent injunction even where it does not allege a pattern or policy of discrimination. . . . 177 F.3d at 467-68 (citations omitted); see also EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994) (stating that "[t]he proper scope of an injunction is to enjoin conduct which has been found to have been pursued or is related to the proven unlawful conduct"); cf. Cosmair, 821 F.2d at 1091 (rejecting an employer's challenge to a district court's preliminary injunction prohibiting the employer – company-wide – from terminating severance payments to former employees who filed EEOC charges; concluding that the evidence in the case "revealed a company policy of terminating payments to employees who filed charges," and that a "company-wide injunction was [thus] not an abuse of discretion."); Astra, 94 F.3d at 745 (finding that a district court had not "misused its discretion in enjoining the utilization of settlement provisions that prohibit employees from assisting the EEOC in investigating charges of discrimination"). Here, the EEOC asked for relief on behalf of Salsbury and "similarly situated" SunDance employees affected by SunDance's company-wide retaliatory policy. The district court accepted EEOC's prayer for relief as an appropriate remedy for the violations at issue. In the EEOC's view, this relief order was carefully tailored to make Salsbury and similarly situated employees whole and to remedy SunDance's illegal practices. On these facts, it was not an abuse of the district court's discretion to order the relief that it did. This is true with respect to tolling the statute of limitations on "claims," as well. SunDance seems to be asking this Court to preclude signatories from filing any "claims" in court because it apparently believes all signatories have waived the right to bring such "claims" by signing the Release. Salsbury and others may very well have done so. However, contrary to SunDance's argument, this precise issue (e.g., whether signatories did in fact knowingly and voluntarily waive their right to file any lawsuit against SunDance) was never raised in this case. The district court found merely that the offensive provisions of the Release could properly be severed from the rest of the Release, which would remain enforceable to the extent permitted by law. (R.43, O&O pg.21, Apx.208) (". . . [T]he Court must consider whether the entire Separation Agreement is unenforceable or merely the portion precluding employees from filing a charge.").) The district court did not definitively decide – because no party has yet asked it to – whether the Release is a valid and knowing waiver of all claims. This is simply an open question best left answered by another court another day. In any event, signatories are still free to challenge the validity of the Release itself. See, e.g., 29 C.F.R. § 1625.23(b) ("No ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual's right to challenge the agreement.") Nothing in the district court's relief order enlarges this pre- existing right (i.e., the relief order provision to which SunDance objects would only enable subsequently-filed lawsuits to be treated as timely – not necessarily meritorious). If and when a signatory does file a lawsuit, SunDance is free to raise its Release as an affirmative defense. In addition, the statute of limitations on claims related to charges now deemed timely under the district court's relief order has not even begun to run. The statute of limitations on claims under Title VII, the ADEA, and the ADA begins to run only after a "notice of right to sue" has been issued, an event which has not occurred with respect to any potential charge encompassed by the district court's order. See 42 U.S.C. §§ 2000e-5(b), (f)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. §§ 626(b), (c), (d); 29 C.F.R. § 1626.15(b) (ADEA). Accordingly, the district court's order has not expanded the statutory protections of charging parties beyond those they already possess by virtue of their ability to file charges (a part of the relief order SunDance does not challenge). Therefore, SunDance has not been harmed by the district court's relief provision tolling the statute of limitations for "claims" related to such charges. This Court should conclude that the district court acted well within its considerable equitable discretion in fashioning this provision, and affirm the district court's relief order in its entirety. CONCLUSION For all the reasons discussed above, the EEOC respectfully requests that this Court affirm the district court's grant of summary judgment in favor of the EEOC and the district court's relief order. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 12,815 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov June 30, 2005 ADDENDA Appellee's Designation of Contents of Joint Appendix . . . . .A-2 Complete Text of Statutory Anti-Retaliation Rules. . . . . . .A-5 EEOC's Enforcement Guidance on Non-Waivable Employee Rights. .A-7 APPELLEE'S DESIGNATION OF CONTENTS OF JOINT APPENDIX Appellee, pursuant to 6 Cir. R. 28(d), hereby designates the following filings in the district court's record as items to be included in the joint appendix: +------------------------------------------------------------------------+ | Record Entry | Description | Date Filed | |--------------+--------------------------------------------+------------| | | Current District Court Docket Sheet | | |--------------+--------------------------------------------+------------| | R.1 | Complaint | 08/01/2001 | |--------------+--------------------------------------------+------------| | R.24 | SunDance's Motion for SJ, with Exhibit: | 11/22/2002 | | | | | | R.24 | * Exhibit A - Affidavit of Margaret | 11/22/2002 | | | McNett pgs. 1-2; Ex.A-3 (Docs. 12-13) | | | | | | |--------------+--------------------------------------------+------------| | R.25 | EEOC's Opposition to SunDance's Motion for | 12/20/2002 | | | SJ, with Attachments: | | | R.25 | | | | | * Declaration of Elizabeth S. Salsbury | 12/20/2002 | | R.25 | pgs. 1-4; Ex.A-1 (Docs. 87, 88, | | | | 90-93); Ex.A-2 (Charge of | | | | Discrimination; Signed Release) | | | | | | | | * Declaration of Susan L. Smith | 12/20/2002 | | | pgs. 1-2; Docs. 321-323 | | | | | | |--------------+--------------------------------------------+------------| | R.39 | Magistrate Judge's Report and | 07/31/2003 | | | Recommendation | | |--------------+--------------------------------------------+------------| | R.41 | EEOC's Objections to Magistrate Judge's | 08/18/2003 | | | R&R | | |--------------+--------------------------------------------+------------| | R.42 | SunDance's Response to EEOC's Objections | 8/28/2003 | |--------------+--------------------------------------------+------------| | R.43 | Memorandum of Opinion and Order Granting | 07/26/2004 | | | EEOC's Motion for SJ and Denying | | | | SunDance's Motion for SJ | | |--------------+--------------------------------------------+------------| | R.44 | Judgment Entry Order | 07/26/2004 | |--------------+--------------------------------------------+------------| | R.46 | Notice of Appeal | 09/23/2004 | +------------------------------------------------------------------------+ I certify, pursuant to 6 Cir. R. 30(f), that all documents designated above to be included in the joint appendix were properly made a part of the record. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov DATED: June 30, 2005 COMPLETE TEXT OF STATUTORY ANTI-RETALIATION RULES +------------------------------------------------------------------------+ | Statute | Language | Citation | |-----------+---------------------------------------+--------------------| | EPA | "It shall be unlawful for any person | 29 U.S.C. | | | to discharge or in any other manner | § 215(a)(3) | | | discriminate against any employee | | | | because such employee has filed any | | | | complaint or instituted or caused to | | | | be instituted any proceeding under or | | | | related to [the EPA] or is about to | | | | testify in any proceeding . . . ." | | |-----------+---------------------------------------+--------------------| | Title VII | "It shall be an unlawful employment | 42 U.S.C. § | | | practice for an employer to | 2000e-3(a) | | | discriminate against any of his | | | | employees or applicants for | | | | employment . . . because he has | | | | opposed any practice made an unlawful | | | | employment practice by [Title VII], | | | | or because he has made a charge, | | | | testified, assisted, or participated | | | | in any manner in an investigation, | | | | proceeding, or hearing under [Title | | | | VII]." | | |-----------+---------------------------------------+--------------------| | ADEA | "It shall be unlawful for an employer | 29 U.S.C. § 623(d) | | | to discriminate against any of his | | | | employees or applicants for | | | | employment . . . because such | | | | individual . . . has opposed any | | | | practice made unlawful by [the ADEA], | | | | or because such individual . . . has | | | | made a charge, testified, assisted, | | | | or participated in any manner in an | | | | investigation, proceeding, or | | | | litigation under [the ADEA]." | | | | | | | | "No waiver agreement may affect the | 29 U.S.C. | | | Commission's rights and | § 626(f)(4) | | | responsibilities to enforce [the | | | | ADEA]. No waiver may be used to | | | | justify interfering with the | | | | protected right of an employee to | | | | file a charge or participate in an | | | | investigation or proceeding conducted | | | | by the Commission." | | |-----------+---------------------------------------+--------------------| | ADA | "No person shall discriminate against | 42 U.S.C. § | | | any individual because such | 12203(a) | | | individual has opposed any act or | | | | practice made unlawful by [the ADA] | | | | or because such individual made a | | | | charge, testified, assisted, or | | | | participated in any manner in an | | | | investigation, proceeding, or hearing | | | | under [the ADA]." | | | | | | | | "It shall be unlawful to coerce, | 42 U.S.C. § | | | intimidate, threaten, or interfere | 12203(b) | | | with any individual in the exercise | | | | or enjoyment of, or on account of his | | | | or her having exercised or enjoyed, | | | | or on account of his or her having | | | | aided or encouraged any other | | | | individual in the exercise or | | | | enjoyment of, any right granted or | | | | protected by [the ADA]." | | +------------------------------------------------------------------------+ EEOC'S ENFORCEMENT GUIDANCE ON NON-WAIVABLE EMPLOYEE RIGHTS CERTIFICATE OF SERVICE I hereby certify that on this 30th Day of June, 2005, I served copies of this brief, via First Class U.S. Mail, postage prepaid, to: Leonard Green Clerk United States Court of Appeals for the Sixth Circuit 100 East Fifth Street Room 532 Potter Stewart U.S. Courthouse Cincinnati, OH 45202-3988 Dean E. Westman Thomas Evan Green Kastner Westman & Wilkins, LLC 3480 West Market Street, Suite 300 Akron, OH 44333 Ann Elizabeth Reesman McGuiness Norris & Williams, LLP Suite 1200 1015 Fifteenth Street, N.W. Washington, D.C. 20005 Stephen A. Bokat, Robin S. Conrad, Robert J. Costagliola National Chamber Litigation Center, Inc. 1615 H Street, N.W. Washington, D.C. 20062 __________________________________ DANIEL T. VAIL DATED: June 30, 2005 ********************************* <1> All references to “R.” are to the corresponding Docket Entry on the district court’s docket sheet. <2> All references to “Apx.” are to the applicable page in the Joint Appendix. <3> After the EEOC informed Salsbury the Release was illegal, Salsbury decided to sign to get the severance pay. (R.25, Salsbury Decl. pg.3 ¶ 9, Apx.64.) By the time Salsbury signed the Release on March 7, 2000, SunDance had gone into bankruptcy proceedings. Salsbury still has not received severance pay. (R.25, Salsbury Decl. pg.4 ¶ 11, Apx.65); (R.25, Salsbury Decl. pg.3 ¶ 10, Apx.63); (R.25, Salsbury Decl. Ex.A-2 Signed Release, Apx.75.) <4> The District Court also concluded that the remaining portions of the Release were valid and enforceable (citing Wastak v. Lehigh Valley Health Network, 342 F.3d 281 (3d Cir. 2003) and Sixth Circuit cases holding that knowing and voluntary waivers of the right to file a discrimination lawsuit can be upheld). (R.43, O&O pgs.21-22, Apx.208-209.) This aspect of the district court’s opinion is not at issue on this appeal.