For example, during a layoff, an employer might ask that an employee agree to give up whatever ADEA claims he or she may have against the employer in order to get severance benefits. Congress enacted the waiver provision in order to resolve a debate over whether employers could ask older workers to waive their ADEA rights. Understanding that waivers are typically tied to the receipt of important economic benefits, Congress determined that employers could obtain waivers but, in order to protect workers' rights, Congress also imposed requirements with which waivers would have to comply.
Ratification prevents an individual from challenging a defective waiver in court.
Among other things, the negotiated regulation prohibited any requirement that an older worker return severance or other benefit payments before filing an administrative charge of age discrimination with EEOC, but it did not address tender back with respect to ADEA lawsuits. The Court gave two basic reasons for its decision. Older workers often need the retirement or severance payments to live on and may, in fact, already have spent the payments on living expenses. EEOC determined that it was important to include the prohibition against tender back in its regulation on waivers. For example, this means that an employer may not require older workers to agree to pay damages to the employer or pay the employer's attorneys' fees simply for filing suit.