Figure 1 diagrams the sequence of case outcomes from our sample. A signiﬁcant proportion of cases (some 19 percent) are dismissed. By far the most frequent outcome is early settlement, which makes up one-half the entire sample of closed ﬁlings (50 percent). Most parties seek to avoid the risks associated with investing in a motion for summary judgment and resolve their claims prior to the ﬁling of a motion. Of the cases that do not settle early, plaintiffs lose the motion for summary judgment in more than one-half the cases (57 percent of remaining cases, or 18 percent of ﬁlings overall). In the 14 percent of cases that remain active after the disposition of the motion for summary judgment, more than one-half (57 percent of remaining cases, or 8 percent of ﬁlings overall) settle before a trial outcome. In the 6 percent of ﬁlings that result in trial outcomes, plaintiffs win 33 percent of the time, or in 2 percent of ﬁlings overall.Their conclusion:
Because settlement is the modal outcome, it is important on both theoretical and policy grounds to know the size of settlements, yet such data typically are unavailable because of conﬁdentiality agreements that often accompany settlement. Of the 945 cases in our sample that settled, we obtained settlement amounts for only 75 cases from court
records. The median settlement was $30,000, the 25th percentile was $11,500, and the 75th percentile was $92,458. Although the number of cases is very small (N = 14), if a plaintiff survived a motion for summary judgment, coded as a “late settlement,” the median award rises to $40,000 and the 75th percentile to $110,000. Our sample contained three very large settlements: one for $110M, one for $29M, and one for $8.1M.5
Our results call for a rethinking of law and social change. Because employment discrimination litigation seldom yields a substantial award for plaintiffs and seldom provides systemic results, it largely does not deliver an impetus for the elimination of workplace discrimination. Employment discrimination litigation is not so much an engine for social change, or even a forum for carefully judging the merits of claims of discrimination, as it is a mechanism for channeling and deﬂecting individual claims of workplace injustice.