Unsealed court records reveal new details about Nike sex discrimination lawsuit
Documents made public in a high-profile gender discrimination lawsuit against Nike reveal for the first time the names of nearly two dozen company employees, including several former top executives as well as high-ranking employees still with Nike, who were accused in anonymous complaints of inappropriate sexual behavior and harassment.
As The Oregonian/OregonLive reported, the new information contradicts Nike’s previous public statements that the complaints largely named managers below its executive ranks.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the documents to be unsealed last month after Business Insider, The Oregonian/OregonLive, and Portland Business Journal fought for years to make public more than 5,000 pages of case filings that detail Nike’s response to reports of a “boys’ club” culture within the company. The media coalition was represented by attorneys from the Reporters Committee for Freedom of the Press.
But the Ninth Circuit panel also issued a separate ruling that clears the way for a lower court to silence The Oregonian/OregonLive’s reporting on other records that it independently obtained outside the litigation, reasoning that the news outlet had submitted to the district court’s power to protect discovery documents by filing an unsealing motion in the case. Last week, joining The Oregonian/OregonLive’s original counsel in that separate appeal, Reporters Committee attorneys asked the Ninth Circuit to rehear the issue, arguing that the panel’s decision as it stands will have a “crippling chilling effect on press coverage of important judicial proceedings.”
“The press plays a vital role in enforcing the public’s right to know what unfolds in the federal courts, as the Nike litigation illustrates,” said Grayson Clary, a staff attorney at the Reporters Committee. “But standing up for the public’s right to see judicial records shouldn’t come at the cost of your right to gather the news outside the courtroom.”
The legal fight for court records
The documents at the center of a three-year fight for transparency by Insider, The Oregonian/OregonLive, and Portland Business Journal are related to a lawsuit that several female Nike employees filed against the company in 2018, alleging gender-based pay disparities and sexual harassment at the sportswear giant.
The plaintiffs asked a federal district court in Oregon to convert the lawsuit into a class action on behalf of more than 5,000 current and former female Nike workers who they argued were subject to systemic discrimination and harassment. To support their motion for class certification, the plaintiffs presented internal surveys that a group of Nike employees collected from their peers to document their experiences at the company, known as the Starfish surveys.
But those records and others related to the motion for class certification were filed under a protective order, leaving the public in the dark about the underlying facts surrounding a pivotal moment in the case, Clary said.
“Class certification is typically the single most important moment in any putative class action. It’s where cases live and die,” Clary said. “Allowing parties to seal the evidence that they submit in support or in opposition to class certification as a matter of course would withdraw an enormous amount of material from public view.”
In 2022, ahead of the court’s decision on whether to certify the class, Reporters Committee attorneys representing the news organizations challenged the protective order that shrouded the documents in secrecy. The court later made public over 5,000 pages of records, including most of the Starfish surveys, but it redacted the names of Nike employees accused of misconduct.
As Insider reported, the unsealed court records provided “the most detailed look yet” at the allegations against Nike, which The New York Times and The Wall Street Journal first chronicled at the height of the “#MeToo” movement.
According to Insider, in the Starfish surveys, female Nike employees alleged “abhorrent sexual behavior combined with corporate bullying, fear of retaliation, and a lack of faith in Nike’s willingness to do anything about it.” Other court documents claimed that Nike paid women $11,000 a year less than men between 2015 to 2019. Nike said that calculation wasn’t accurate and there was no gender pay gap.
In late 2022, the district court denied class certification in the case. Soon after, Reporters Committee attorneys sought to unseal the remaining redacted documents on behalf of the media coalition, arguing that the public has a common law right of access to the records that the court used to make its determination.
Nike argued that the records should be shielded from public view because they weren’t related to the merits of the case, and even if they were, releasing them would subject its employees to embarrassment and create a “media circus.”
Two federal judges sided with the news organizations, finding that the records were related to the case’s merits and that the public’s strong interest in the filings outweighed the privacy interests Nike wanted the court to protect. Nike appealed to the Ninth Circuit, which heard oral arguments in February. Clary represented the media coalition at the hearing.
Last month, the Ninth Circuit upheld the district court’s ruling, lifting the redactions from the Starfish surveys and shedding more light on the allegations that rattled Nike in 2018.
The now-unredacted documents allege misconduct by high-ranking employees, some of whom have since left the company and some of whom remain, The Oregonian/OregonLive reported. One Starfish survey included a list of men that an anonymous complainant described as “well known philanderers with lower level employees whom they exert influence and power over,” which includes Nike’s former No. 2 executive Charlie Denson and Tinker Hatfield, who designed some of Nike’s most iconic Air Jordan models.
Hatfield, through his attorney, told The Oregonian/OregonLive that he “unequivocally” denied the allegations revealed in the unsealed surveys. Denson didn’t immediately respond to The Oregonian/OregonLive’s request for comment via phone and email messages, the outlet reported.
In a statement to The Oregonian/OregonLive after the Ninth Circuit ruling, Nike said it “conducted a large-scale investigation” in response to employee complaints, including those in the Starfish surveys, “and took corrective action where appropriate.” The company has also changed its policies and procedures to make it easier for employees to raise concerns, it added.
“Nike is committed to a workplace that is respectful and inclusive of all employees, and we do not tolerate discrimination or harassment in any form,” the company said in the statement, according to The Oregonian/OregonLive. “We take any and all accusations seriously, objectively look at the facts, and take appropriate action based on the information received.”
Nike recently agreed to settle the lawsuit, The Oregonian/OregonLive reported.
The Oregonian/OregonLive fights prior restraint in the case
Still, the legal battle over documents in the case isn’t finished. On behalf of The Oregonian/OregonLive, Reporters Committee attorneys are joining the organization’s original counsel in challenging a separate Ninth Circuit ruling that would allow a district court to issue an unconstitutional prior restraint against the news outlet.
The appeals court panel in March overturned a lower court’s ruling that declined to claw back sealed court records that The Oregonian/OregonLive independently obtained from an attorney for the plaintiffs.
Last year, the attorney asked a federal judge to force The Oregonian/OregonLive to return or destroy documents that she inadvertently emailed to the news outlet after she met with one of its reporters for a story that was not about the litigation. A district court denied the request, ruling that The Oregonian/OregonLive obtained the records lawfully and has a First Amendment right to report on them. Nike appealed to the Ninth Circuit.
In reversing the district court’s decision, the appeals panel held that because the outlet had separately intervened to challenge the protective order in the case, it became a party in the lawsuit and therefore could be prohibited from reporting on information that remained under seal. The panel sent the case back to the district court for further action.
“I find the decision baffling and quite troubling on First Amendment grounds,” said Therese Bottomly, editor of The Oregonian/OregonLive. “We simply intervened in a very limited way on behalf of the public good and should not have to set aside our constitutional rights to do so.”
This month, Reporters Committee attorneys began representing The Oregonian/Oregon Live alongside its original counsel and asked the Ninth Circuit to rehear the case.
In the petition for rehearing, Reporters Committee attorneys argue that the panel’s decision “will put the press to an impossible choice: Refrain from exercising the right of access to judicial records, or risk forfeiting the right to gather the news ‘through means independent of the court’s processes.’” It would have a chilling effect on news reporting, they argue, “at the ultimate expense of the public.”
“The classic First Amendment rule should have governed here,” the petition states. “No branch of government has the power to bar the press from publishing lawfully acquired, truthful information on a matter of public concern.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our newsletters and following us on Bluesky, LinkedIn, Instagram, Facebook, and X.