In 2011, the U.S. Supreme Court rejected the largest ever class action lawsuit, despite widespread evidence that Wal-Mart treated women less favorably then men. In so doing, it fundamentally altered the standards for suing large corporations for discrimination, and sent the message that big companies are particularly immune to challenge.
Two years later, the statistics bear out that message, as new employment discrimination lawsuits and settlement payouts have plummeted, according to a report by ProPublica. In 2010, the year before the U.S. Supreme Court’s decision in Wal-Mart v. Dukes, the top 10 settlements totaled $346 million. In 2012, they totaled just $45 million — an 87 percent decrease. Before Dukes, about 25 to 30 new cases were filed every year, according to a national litigation resource center. Now, there are about 10 to 12 filed. The decision has been cited more than 1,200 times in state and federal rulings — another remarkable measure of its impact.
As ProPublica notes, there have been some prominent exceptions, including a $160 million payout just last month by Merrill Lynch in what was the largest class action settlement ever in a race bias case. But there have been many more losses, including the repeated rejection of smaller challenges to Wal-Mart’s policies, and the rejection of a pre-Wal-Mart case in which supervisors at Nucor reportedly called black colleagues racial epithets like “yard apes” and “porch monkeys.”
The Wal-Mart decision is just one in a harrowing string of decisions narrowing access to the courts and corporate accountability, particularly for workers and consumers that continued in the years to follow. And it was arguably only the second-worst of that Supreme Court term. Another 5-4 ruling in AT&T v. Concepcion allows corporations to simply eliminate access to justice through boilerplate contracts. A year after that decision was issued, federal judges had already tossed out 76 class actions citing the ruling. And this term, the Supreme Court dealt several blows not just to class mechanisms, but to sexual harassment claims by workers.