aPHR Employment Law 5 — Questions and Answers
Question 1: Which of the following correctly describes the 'business necessity' defense to a disparate impact claim?
- The employer proves the practice was applied intentionally and fairly
- The employer demonstrates the challenged practice is job-related and consistent with business necessity (Correct answer)
- The employer shows the practice was mandated by a federal regulation
- The employer proves no protected class members were harmed
Correct answer: The employer demonstrates the challenged practice is job-related and consistent with business necessity
The business necessity defense requires an employer to show that a selection procedure that causes adverse impact is job-related for the position and consistent with business necessity.
Question 2: The Lilly Ledbetter Fair Pay Act of 2009 changed the statute of limitations rule for pay discrimination claims by:
- Extending the filing deadline to five years from the first discriminatory paycheck
- Restarting the 180/300-day clock with each discriminatory paycheck issued (Correct answer)
- Allowing pay discrimination claims to be filed at any time regardless of when the act occurred
- Requiring employers to post pay scales so employees know earlier of any discrimination
Correct answer: Restarting the 180/300-day clock with each discriminatory paycheck issued
The Lilly Ledbetter Act reset the charge-filing clock with each new discriminatory paycheck, overturning the Supreme Court decision that limited claims to acts within 180/300 days of the original discriminatory pay decision.
Question 3: Under the ADA, which of the following is NOT a permissible pre-employment medical inquiry?
- Asking whether the applicant can perform the essential functions of the job
- Asking whether the applicant has a history of cancer (Correct answer)
- Informing the applicant of physical requirements of the job
- Asking the applicant to demonstrate how they would perform a job task
Correct answer: Asking whether the applicant has a history of cancer
Asking about an applicant's medical history, including prior illnesses, before a conditional job offer violates the ADA's pre-offer prohibition on disability-related inquiries.
Question 4: Which of the following scenarios describes a legitimate use of a Bona Fide Occupational Qualification (BFOQ) defense under Title VII?
- Requiring female applicants to pass a strength test that male applicants are not required to take
- Requiring actors auditioning for a male role to be male for authenticity (Correct answer)
- Preferring employees of a certain race for positions in a racially diverse neighborhood
- Limiting nursing positions to women because patients prefer female nurses
Correct answer: Requiring actors auditioning for a male role to be male for authenticity
BFOQ is a narrow defense allowing sex (or religion/national origin) as a job requirement when it is essential to the core business function, such as authentic casting in acting.
Question 5: A non-compete agreement is most likely to be enforceable when it:
- Is signed by the employee after they have already been working for six months
- Is reasonable in scope, duration, and geographic area and supported by consideration (Correct answer)
- Prohibits the employee from working in any capacity for a competitor for five years nationwide
- Is included in the employee handbook distributed at new-hire orientation
Correct answer: Is reasonable in scope, duration, and geographic area and supported by consideration
Courts generally enforce non-compete agreements only if they are narrowly tailored—reasonable in time, geographic scope, and activity restricted—and supported by adequate consideration.
Question 6: Under Title VII, the EEOC charge filing deadline for employees in states with a state agency (deferral states) is:
- 90 days
- 180 days
- 300 days (Correct answer)
- 365 days
Correct answer: 300 days
In deferral states—those with a state or local fair employment agency—employees have up to 300 days from the discriminatory act to file an EEOC charge.
Question 7: Which of the following is an example of 'constructive discharge'?
- An employee is terminated for poor performance after three warnings
- An employer deliberately makes working conditions so intolerable that a reasonable person would feel compelled to resign (Correct answer)
- An employee is laid off due to a reduction in force and receives severance
- A supervisor demotes an employee and reduces their pay without the employee's consent
Correct answer: An employer deliberately makes working conditions so intolerable that a reasonable person would feel compelled to resign
Constructive discharge occurs when an employer intentionally makes working conditions unbearable, effectively forcing the employee to quit, which courts treat as an involuntary termination.
aPHR Employment Law 5
Which of the following correctly describes the 'business necessity' defense to a disparate impact claim?