For disparate-treatment claims - and others for which discriminatory intent is required - that means the plaintiff must demonstrate deliberate discrimination within the limitations period. But for claims that do not require discriminatory intent, no such demonstration is needed. Our opinions, it is true, described the harms of which the unsuccessful plaintiffs in those cases complained as "present effect[s]" of past discrimination. But the reason they could not be the present effects of present discrimination was that the charged discrimination required proof of discriminatory intent, which had not even been alleged. That reasoning has no application when, as here, the charge is disparate impact, which does not require discriminatory intent.

Last year, US President Barack Obama signed into law [JURIST report] the Lilly Ledbetter Fair Pay Act of 2009 [S 181 materials], extending the deadline for employees to sue their employers for unequal pay discrimination under a disparate treatment theory. The law's "clarification" of equal pay protections effectively overturned the 2007 Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co [opinion, PDF; JURIST report], which held that "a pay-setting decision is a discrete act that occurs at a particular point in time" and that the statutory period for filing a discrimination claim with the EEOC begins when that discrete act occurs. The new law altered Title VII of the Civil Rights Act of 1964 [text] to clarify that the six-month statute of limitations controlling racial, gender, or national origin employment discrimination suits is applicable to each instance of a discriminatory practice, including the receipt of each paycheck, not only to the initial discriminatory act. The initial lawsuit was brought by Lilly Ledbetter, a 19-year Goodyear employee, who alleged that she received less pay than male counterparts because of gender discrimination. The Supreme Court upheld the US Court of Appeals for the Eleventh Circuit's reversal [opinion, PDF] of a district court decision awarding Ledbetter $360,000 in damages.