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I. INTRODUCTION
Over time, Congress has enacted several statutes to prevent discrimination in the workplace. The seminal piece of legislation is the Civil Rights Act of 1964 (The Civil Rights Act).1 Title VII of the Civil Rights Act mandates that there be equal employment opportunity among groups of employees contemplated by the act.2 The Civil Rights Act expressly makes it illegal to:
fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...3
The groups specifically mentioned in Title Vii, race, color, religion, sex and national origin, become known as the federally protected classes. Through amendments to Title Vii, and through other federal legislation, other protected classes were added. In addition to Title VII, the Equal Pay Act of 1963 also protects sex.4 The Age Discrimination in Employment Act of 1967 prohibits discrimination in employment decisions against persons 40 years of age or older.5 The Americans with Disabilities Act of 1990 provides protection for individuals classified as mentally or physically disabled.6 The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act's protection against discrimination based on sex to include women who are pregnant.7 Special legal protections also exist for veterans.8 Some state and local laws, as well as corporate policies, extend further protections to groups not protected by federal law such as for sexual orientation and gender identification.9
The statutes enacted by the U.S. government are facially clear that an employer cannot engage in disparate treatment discrimination. Disparate treatment discrimination is when an employer acts with the intent to discriminate against a protected class.10 The underlying theory behind disparate treatment discrimination is clear. Intentional discrimination "is immoral and uneconomical and, therefore, ought to be, and is, illegal."11 Less clear from the language of Title VII when it was adopted and from an ethical standpoint, are claims of disparate impact discrimination.12 Disparate impact discrimination occurs when, without a business necessity, an employer action even though facially neutral, places one group at a position that is disadvantageous to other groups.13 Disparate impact therefore is unintentional discrimination stemming from employment practices that cause a disproportionate "adverse...