Does the Lilly Ledbetter Act apply to both intentional discrimination and disparate impact claims?
Sugarman: Some interesting and complicated issues are likely to arise out of how disparate impact claims are going to play out in this context. I don’t see why, on the face of the statute, disparate impact claims wouldn’t be covered. Employing practices that have a disparate impact is a form of discrimination. So when you see the words “discriminatory compensation decision” or “other practice” in the Ledbetter Act, that language encompasses the decision to use a practice that has a disparate impact and the application of that practice. Romeo: I’d argue that disparate impact as it has been historically defined—for example, a facially neutral policy or test that has an adverse impact on one particular group of protected workers—would not have a high degree of applicability to a claim that the employer has paid one class of employees, such as males more than the females, or the Caucasians more than the other races in the workplace. Such practice is arguably not facially neutral, but more
