It was a classic Nike ad – a celebration of women and sports in conjunction with International Women’s Day that was so inspiring and beautifully shot it could bring tears to your eyes.
“One day, we won’t need a day to celebrate how far we’ve come,” a young female narrator states in the voiceover. “We won’t need a day to prove we’re just as strong and fast and skilled.”
The 2021 campaign made no mention of the fact that a group of women employees were suing the company, alleging widespread sex discrimination, harassment and an $11,000-per-year gender pay gap. It didn’t say that for three years Nike had been waging a fierce courtroom fight to keep a trove of internal documents under seal and out of the public eye.
Those documents, newly unsealed under pressure from the plaintiffs in the lawsuit and, separately, a media coalition that included The Oregonian/OregonLive, provide a vivid portrait of women frustrated by pay disparities, harassment and what some described as a “bro” culture where advancement hinged on who you knew rather than your skills.
The Nike papers contain firsthand accounts from women, few identified by name, who worked at the company by turn furious and afraid of seeking action for fear of reprisal.
The stories in the court file are cherry-picked by the plaintiffs’ lawyers seeking to make the case that Nike treated its female employees unfairly. The thousands of women who loved the company and their jobs are not represented.
But the documents provide a powerful look into the allegations of sexual harassment and disparate pay that embroiled Nike’s Washington County campus in 2018, resulting in the departure of two senior executives and ouster of nearly a dozen managers.
One anonymous woman reluctantly described to a team of company officials her experience with a new male coworker.
As one of the participants in the meeting scribbled notes later entered into the court record, the employee said she never had a problem until the new hire came onboard: “Terrorized her. He wouldn’t stop. Boys club attitude. Knows he can get away with it. Biggest concern is that she already reported this situation to HR and nothing was done.”
Another complained in an email to the company’s diversity and inclusion group that she was being paid $10,000 to $15,000 less than her peers.
“I have been in this role for two years,” the woman wrote, “and while it’s been acknowledged that my pay is low, I am starting to feel helpless in my current situation.”
Months of back-and-forth ensued as company officials tried to figure out whether the woman’s claim was legitimate. They finally determined she was being underpaid.
But the matter suddenly became irrelevant when the employee quit. In an email to an associate, a Nike official familiar with the case expressed surprise at her departure: “Crazy after all this back and forth on $.”
Many of the complaints included in the newly unsealed documents came from the so-called “Starfish” survey, an unauthorized effort launched by a handful of female employees who had grown concerned at the culture on Nike’s campus and particularly how it impacted their younger, more junior counterparts. The survey, conducted without the knowledge of management, solicited first-hand accounts of discrimination or sexual harassment. “If it’s happened to you we want to know,” read the headline on the Starfish form.
Others offered their accounts in deposition interviews with the lawyers.
The feeling that badly behaving men were protected was common, the records suggest. “Certain employees (mostly male) are protected because of who they are and who their friends are regardless of the fact they are severe underperformers,” one woman said. “We keep ‘finding money’ for these people and they take up valuable space in the company.”
A frequent complaint was about a boy’s club culture and lewd and offensive behavior by male managers.
One woman reported coming across a Nike manager receiving oral sex from a woman employee in the massage room at the company’s sports center. She backed out of the room as quickly as she could. Shaken and upset, she still rejected the suggestion that she pursue the matter with Nike higher-ups. “No, he’s too high up. I don’t want to lose my job.”
One of the few women identified in the newly uncovered documents is Lauren Anderson, who is also one of the 14 named plaintiffs in the case. Anderson felt the trajectory of her career at Nike was stifled by a male supervisor she worked for in a digital marketing unit. She often felt demeaned and singled out.
“There was an incident when we were at an off-site he was extremely disrespectful,” Anderson said in a deposition. “It was a social gathering at night with a bunch of our co-workers, basically our whole team.”
The woman’s boss got up from the table, stood in front of her “with his crotch in my face” and suggested a sexual act, Anderson claimed.
A Nike lawyer present at the deposition pointed out that the man in question had left the company after Anderson complained about his behavior.
“I think it was the summer of 2018 when all the heads rolled,” Anderson said. “There were a lot of senior leaders who left or were let go.”
Indeed, 2018 was a watershed year at Nike.
After the women behind the Starfish survey presented their grim findings to then-CEO Mark Parker, he announced publicly that he’d become aware of behavior by Nike employees that “did not meet company standards.” The company vowed to fix things, starting with an “overall review of our HR system and practices.”
At the time, Parker announced that Trevor Edwards, arguably the second most powerful executive at the company to Parker, was retiring.
“Over the past few weeks, we’ve become aware of reports of behavior occurring within our organization that do not reflect our core values of inclusivity, respect and empowerment at a time when we are accelerating our transition to the next stage of growth and advancing our culture,” Parker wrote to employees in 2018. “This disturbs and saddens me.”
A 2018 memo offered revealing numbers on the advancement of women at Nike.
Overall, Nike’s total workforce was 51% men, 49% women. But among employees classified as “people managers,” the ratio was 59% male, 41% female. Among “leadership/management,” the ratio was 64% male, 36% female.
Laura Salerno-Owens, the Portland attorney leading the plaintiffs, said the documents, as well as prior statements of Nike executives, help strengthen their case. She cited Parker’s admission in 2018.
Nike did not return emails. But in court filings, the company flatly denied that any of its employees discriminated against or retaliated against any of the plaintiffs.
“To the extent that Plaintiffs allege that one or more of Nike’s employees allegedly discriminated or retaliated against them,” Nike’s attorneys wrote, “Nike expressly denies such allegations and states that any such alleged conduct, if any: (1) was outside the course and scope of those employees’ employment; (2) was not condoned by Nike; and/or (3) was undertaken without the knowledge or consent of Nike.”
Moreover, Nike said, the plaintiff’s failed to make a convincing case.
“They plead conclusory allegations and generalizations, rather than facts, to support the claims,” its attorneys wrote.
In 2019, at Nike’s request, U.S. District Court Magistrate Judge Jolie Russo approved a protective order that would make much of the evidence provided by the company unavailable to the public. It was necessary to protect witnesses from “annoyance, embarrassment, oppression or undue burden or expense,” Russo said.
A trio of news organizations – The Oregonian/OregonLive, the Portland Business Journal and led by the digital news company Insider – intervened in the case and urged the judge to make the records public. The publications argued that the gag orders violate common law principles of open courts and the public’s First Amendment right to review court records.
“As one of the most well-known multinational corporations in the world, Nike’s employment practices — which are directly at issue in this matter — are closely watched by the public,” wrote Ellen Osoinach, lawyer for the news organizations. But the requests for secrecy and protective orders leave “the press with scant access to the underlying facts or arguments.”
Russo partially lifted the gag order in November. Lawyers for the plaintiffs wasted no time filing the unredacted documents in the public court file.
In court filings, Nike denied that it acted unreasonably in seeking to keep the internal records under seal.
“In the spirit of cooperation and good faith, Nike has gone to great lengths to ensure the overwhelming majority (of the material provided by the company) remains un-redacted and open to the public,” the company said in court filings. “The limited material Nike seeks to redact is derived from content Nike produced to plaintiffs, which contains confidential, proprietary business information and/or confidential, private information about non-parties to this litigation.”
The huge sports company claims to have provided 995,000 pages of personnel records for nearly 13,400 employees. The lawyers for the women employees argue Nike has still refused to release key documents they’ve asked for.
The plaintiffs, for instance, sought internal documents related to Edwards, the senior executive who was seen as the likely successor to Parker as Nike CEO, and David Ayre, who ran Nike’s human resources department from 2007 to 2017.
Both were lightning rods for criticism in 2018 when the controversy reached its peak. Ayre had previously declared that Nike had achieved nearly 99% gender equity, a claim that has since been discredited.
Russo specifically ordered Nike to produce relevant documents that involved the executives. The company initially handed over 15 unique documents mentioning Edwards and six mentioning Ayre.
Salerno-Owens said Nike eventually furnished additional documents involving the two former executives, but still none of the new papers had to do with decisions about promotions, compensation, discrimination or their sudden resignations.
Nike claimed it searched for responsive documents involving Edwards and Ayre and found none.
“The court cannot order a party to produce documents that don’t exist,” a Nike lawyer wrote in a summary of the discovery battle.
Nike also objected to the public release of some of the plaintiff’s documents, including the findings of an expert witness that on average Nike men are paid about $11,000 more a year than women in equivalent positions.
Nike said the conclusion is “fundamentally flawed” and that disclosing it “would only promote public scandal.”
Jeff Feldman, a University of Washington law professor and expert in civil procedure, said he’s never heard of a discovery process taking as long as in the Nike case – approaching five years now.
“Discovery fights are commonplace,” he said. “But five years is certainly a long time.”
Discovery is a hallmark of American jurisprudence that gives litigants the right to demand internal information from their opponent that is pertinent to their case. That information can come from internal documents, depositions of company officials and other means.
“There is often a significant asymmetry of knowledge between the two sides, that’s a common dynamic in these kinds of lawsuits,” Feldman said. “Discovery is intended to even that out.”
Nike lost the battle to keep its records out of the public eye. But it may have won the war.
In December, Russo denied the plaintiff’s request that their complaint be deemed a class action suit, which could make the lawsuit much less costly to Nike. Instead of representing every Nike female employee, the attorneys are representing just the 14 women who agreed to put their names forward as named plaintiffs.
The lawyers for the women have appealed the ruling. U.S. District Judge Marco Hernández is currently considering arguments from both sides.
-- Jeff Manning; jamanning@oregonian.com