Nike Runs Into Trouble Trying to Hide Discriminatory Pay Disparities

Mengfei Sun, Attorney, Goldstein Borgen Dardarian & Ho.

In our recent victory in the class action Cahill et al v Nike, we defeated Nike’s attempt to hide Plaintiffs’ analysis of pay disparities at the company from the public. The case is a reminder about the importance of resisting attempts by defendants to shroud class proceedings in secrecy. 

On January 10, 2022, Plaintiffs, represented by Goldstein, Borgen, Dardarian & Ho, Ackermann & Tilajef, P.C., India Lin Bodien, Attorney at Law and Markowitz & Herbold PC, filed a motion for class certification, seeking an order certifying a class of several thousand women based on evidence that several uniform policies and practices resulted in Nike paying women less, promoting women less often, and placing women into lower initial job assignments compared to similar men.  The motion also seeks certification of intentional discrimination claims based on evidence that Nike knew about the discriminatory nature of its policies, but failed to correct them. 

Several policies and practices resulted in Nike paying women less and promoting them less often.

Because Nike designated nearly every produced document confidential pursuant to the entered Protective Order, Plaintiffs had to decide which confidentiality designations to challenge and force Nike to formally move to seal.  Nike ultimately moved to seal three categories of information that we opposed.  The Court agreed with us that Nike could not keep from the public: (a) statistical evidence of gender pay and promotion shortfalls in our expert reports; (b) the names of three former Nike executives who allegedly condoned and perpetuated gender discrimination and harassment at Nike; and (c) the fact that Nike started a “2018 pay equity promotional analysis” but later halted it based on the advice of counsel; never completing it and never telling Nike employees about its cessation.  Cahill v. Nike, Inc., Case No. 3:18-cv-01477-JR, 2022 WL 4667364 (D. Or. Sept. 30, 2022) (Findings and Recommendations).

The Court recognized that statistics alone could make a showing of discrimination.

The Court’s reasoning should be helpful to others because it recognized that statistical evidence is integral to plaintiffs’ discrimination claims, that statistics alone could make a showing of discrimination, citing Buchanan v. Tata Consulting Servs. Ltd., 2017 WL 6611653, *12 (N.D. Cal. Dec. 27, 2017), and that Nike’s alleged refusal to pay female employees fairly is a matter of public import.  The Court did not decide whether the “good cause” or “compelling reasons” standard applied for sealing the requested categories of information because Nike “largely fails to present even ‘good cause’ for the proposed non-disclosures.”  In finding Nike’s “mere desire to keep this information confidential is inadequate ….,” the Court criticized Nike’s motion because it made broad assertions that did not meaningfully address the issues.   

The case is a reminder about the importance of resisting attempts by defendants to shroud class proceedings in secrecy. 

The Court was also critical of Nike’s submissions for failing to clearly identify its proposed redactions or bases for redactions, which in turn forced the Court to review thousands of pages of documents multiple times in deciding on the Motion to Seal and “resulted in tremendous expenditures of time by the Court – tactics which the defendant has been specifically cautioned against in the past.”   

Publicly accessible filings in discrimination class actions are especially critical to ensure our clients, affected class members, and the broader public can view and understand the full record supporting serious allegations of unlawful discrimination. 

Hopefully this decision can assist others to beat back improper attempts to hide important evidence from our cases from the public.