Yesterday’s Supreme Court decision in Wal-Mart v. Dukes is a huge blow to the more than 1 million women who alleged rampant and systematic gender discrimination against the retail giant. The court’s decision will still allow each of the individual women to bring their own case against Walmart, but they will not be able to join together in a class action. For this reason, thousands of these workers will decide that their case isn’t worth the multi-year hassle of an individual lawsuit. Thousands more will discover that they cannot afford to hire an attorney to bring their case. And thousands more on top of that will be forced to hire attorneys who are far less equipped to take on a major corporation than the elite legal team attracted by a large class action.
Nevertheless, Wal-Mart is only the second-biggest blow the Supreme Court dealt to workers, consumers and other people who need class actions to vindicate their rights during its current term.
Two months ago, the Court handed down a 5-4 decision in AT&T Mobility v. Concepcion , permitting corporations to refuse to do business with anyone who refuses to sign away their right to bring a class action lawsuit. As a result of this decision, Walmart need never worry about a class action again — they can simply tell all of their workers to sign away their rights or they’re fired.
Nor is Walmart alone in being able to take advantage of Concepcion. Cell phone companies, credit card companies, banks, and even nursing homes have all used similar traps to force their consumers into a privatized arbitration system that overwhelmingly favors corporate parties. After Concepcion, they can all just add a “no class action” clause to those contracts and usher in an era where consumer and worker class actions are a thing of the past.