against him when he returned to work (after his injury) because he was black. His employer later presented him with a document entitled "Release of All Claims". The plaintiff was advised by counsel that he would have to modify such a general release if he was to ensure that it did not waive the claim that he had filed with the EEOC. Plaintiff failed to make any such modifications. He signed the "general release" document and effectively "released all claims", including the claim with the EEOC.
Whirlpool maintains that Brooks is analogous to this case, and that the court must hold that Wisch waived his ADA claim if it finds that he did so "knowingly and voluntarily". However, the holding in Brooks is not controlling because the contract which the plaintiff signed in Brooks was unambiguous on its face, and the plaintiff was aware that it was a general release of all claims.
In addition, Wisch points out that the enforcement provisions of the ADA, 42 U.S.C. Section 12101, et. seq. are those of Title VII, 42 U.S.C. Sec. 2000e, et. seq.. An individual may not waive his or her rights under Title VII unless he or she does so voluntarily and with full knowledge. Riley v. American Family Mut. Ins., 881 F.2d 368 (7th Cir. 1989). Alleged waivers of claims made under the ADA should be held to similar standards as those made under the ADEA (which is also enforced by the provisions of Title VII), as the policy rationale behind Congress' enactment of the ADEA is parallel to the rationale behind the enactment of the ADA. Waivers of claims made under the ADEA must meet specific statutory requirements listed in 29 U.S.C.A., Section 626 (f) (1) to be considered "knowing and voluntary", and thus valid. These alleged waivers are commonly tested under a "federal totality of circumstances" approach which takes into account factors such as (1) the employee's education and business experience; (2) the clarity of the agreement (e.g. whether the release language specifically mentioned the release of an ADEA claim); and (3) whether the individual was represented by counsel. "The totality of the circumstances approach is consistent with the strong congressional purpose underlying the ADEA to eradicate discrimination in employment." Pierce v. Atchison, Topeka, and Santa Fe Railway Co., 65 F.3d 562 (7th Cir. 1995). The ADA is aimed at eradicating discrimination against disabled people in areas such as the workplace, and its purpose is parallel to that of the Age Discrimination in Employment Act (which aims to eradicate discrimination against people due to their age in the workplace); thus, a similar test should be applied.
Under the totality of circumstances approach, the court finds that Wisch did not knowingly and voluntarily consent to waive his ADA claim. The Settlement Contract did not refer to his ADA claim. Illinois courts have held that "when an instrument contains recital of, or other reference to, specific claims and also words of general release, the words of general release are limited to the particular claims to which reference is made." Gladinus v. Laughlin, 51 Ill. App. 3d 694, 366 N.E.2d 430, 432, 9 Ill. Dec. 173 (5th Dist., 1977). Thus, even if the court was to find that the Settlement Contract contained "words of general release" these words do not reach any further than the single specific claim which was mentioned--that is, the workers' compensation claim.
The release of a federal right must be supported by consideration. Maynard v. Durham and Southern Railway Co., 365 U.S. 160, 81 S. Ct. 561, 562-3, 5 L. Ed. 2d 486 (1961); Riley v. American Family Mutual Ins., 881 F.2d 368, 374 (7th Cir. 1989). The language of the Settlement Contract does not provide consideration for any claims outside the workers' compensation claim. "Respondent to pay and petitioner to accept $ 28,854.75 in full and final settlement of any and all claims under the Workers' Compensation and Occupational Disease Acts...". (Dx4). Because the language of the Settlement Contract does not provide Wisch any consideration in exchange for the waiver of his ADA claim, the court also holds that the Settlement Contract fails for lack of consideration to release the ADA claim.
For the reasons stated herein, Whirlpool's supplemental affirmative defense is DENIED and count III of Wisch's Complaint is DISMISSED WITH PREJUDICE.
SO ORDERED THIS 6TH DAY OF JUNE, 1996.
United States Magistrate Judge