PORTLAND — Nike has repeatedly defied a federal judge magistrate’s order that it hand over potentially explosive documents to a group of former employees who have accused the company of discriminating against women. And now, a more senior judge has refused to hear Nike’s request to overturn the magistrate’s ruling.
Judge Magistrate Jolie Russo ruled in October 2019 that Nike had to produce most of the documents requested by the former employees, who accuse the company of routinely paying women employees less than men doing the same job.
Russo has since issued at least two subsequent orders that Nike produce the documents. Nike has resisted. Nike finally attempted to go over Russo’s head and get a more senior judge to countermand her ruling. On Monday, U.S. District Court Judge Marco Hernandez declined to give Nike a hearing.
Nike says it has released thousands of pages of documents but has refused to give up certain personal information from individual employees who it says had nothing to do with the case. Releasing the information would violate the employees’ right to privacy, the company argues.
Some of the requests, though, are for information about powerful former executives who were central to women’s accusations against the company.
Russo has generally refrained from commenting about either party in the case. But she showed a bit of annoyance in an August filing.
“Defendant has demonstrated a certain lack of transparency so far in the discovery process and certainly some deficient production,” she wrote. In the same document, Russo voiced some confidence that the company would “continue its efforts to locate responsive documents.”
Nike declined to comment.
Laura Salerno Owens, the plaintiff’s lead lawyer, said in a written statement that “Nike has implemented discriminatory practices” that have hurt her clients and other women.
“Plaintiffs are seeking to finally change those practices and provide a remedy to female employees who have been harmed,” continued Salerno Owens, who works for the Markowitz Herbold firm in downtown Portland.
Discovery fights are not uncommon in high-stakes litigation. Critics argue that deep-pocketed corporate litigants commonly use the discovery process to stall. If they stall long enough, the opponent may well run out of money and patience and agree to settle.
“Discovery is where lawsuits go to die,” said John Parry, dean of faculty and professor at the
Lewis & Clark Law School in Portland. “On the plaintiff’s side, you want everything. You cast a wide net. The defendants say it’s a fishing expedition.”
If the case ever gets to trial it could provide a new lens into a troubled time at Nike. In 2018, women employees claimed internally they didn’t get a fair shake. They were paid less and promoted less, they claimed. Inspired by the #MeToo movement, respected women executives accused Nike of tolerating a “boys’ club” environment of sexual harassment and bullying.
A group of influential women leaders on campus went straight to Mark Parker, then Nike CEO and chairman, with evidence. The news leaked. Parker promised to make amends in an all-employee meeting. The company quickly promoted several women to executive positions and jettisoned a handful of executives and managers who allegedly harassed and took advantage of women.
The lawsuit was filed in August of that year.
“Women’s career trajectories are blunted because they are marginalized and passed over for promotions,” the complaint alleges. “Nike judges women more harshly than men, which means lower salaries, smaller bonuses, and fewer stock options. Women’s complaints to human resources about discrimination, including unequal pay, unequal promotions, and harassment are ignored or mishandled.”
The allegations of systemic discrimination were a far cry from Nike’s image. The company pays many of the best female athletes in the world to wear its products. Its ads have called for equal opportunity for decades.
The plaintiffs have asked for a huge amount of data from Nike. They’ve asked for pay and promotion records, for disciplinary files and for a full copy of the Starfish report, a survey of Nike women conducted by Nike employees, who later presented it to Parker.
The plaintiffs are asking for particularly detailed information on three former executives — former Nike brand President Trevor Edwards, former Human Resources Vice President David Ayre and former marketing manager Danny Tawiah.
Edwards and Tawiah left the company following the women’s revolt. Ayre left the company a couple years before. Ayre has been the subject of withering complaints from employees who went to him with concerns when he headed human resources.
If and when the fight over discovery is concluded, the two parties will move on to the deposition stage, when lawyers get the opportunity to grill their opponents. Lawyers figure that will take another year. The actual trial could get underway in 2022.
