LAWSUIT AGAINST NIKE ON THE BASIS OF GENDER DISCRIMINATION

Introduction

The case is a lawsuit that intends to become a class-action, brought against the company Nike
by several current and former female employees. Plaintiffs work or used to work for Nike in
Oregon, at a corporate level below that of Vice-President. Given that they are all in a similar
position they request the Court that the lawsuit be classified as a class-action, which can be
defined as “aggregate litigation comprising large numbers of individual lawsuits arising out
of the same harm” (Hensler, 2009, p. 9).

The case is based on the allegation that Nike “has caused, contributed to, and perpetuated
gender-based pay disparities through common policies, patterns, and practices” in the
company. In order to sustain this claim, the complaint makes a series of statements, among
which is the fact that, at the more senior levels, the ratio of women-to-man employees
decreases. The complaint also mentions that there have been several complaints against male
employees that hold senior-level executive positions for hostility against women employees,
expressed in varied ways.

Analysis

The legal conflict revolves around the issue of sex discrimination in the workplace, as it
relates to (i) equal pay between female and male employees; and (ii) favoring promotions of
male employees over that of female employees under similar conditions (which also,
naturally, promotes the gender-based wage disparity). Also, plaintiffs claim that Nike in
general favors an environment that is female-adverse, in the sense that it either encourages, or
fails to address, practices that privilege the employment conditions of male employees.

In particular, the issues raised by plaintiffs, if proven, would imply a breach of the (i) Federal
Equal Pay Act; (ii) Oregon Equal Pay Act; and (iii) Oregon Equality Act, of its “disparate
impact” and “intentional discrimination” sections.

Interestingly, one of the most relevant claims in the lawsuit relates to the salary history
which, according to the plaintiffs, “causes women to receive lower starting salaries and other
less favorable compensation-related terms”. In order to legally support this claim, plaintiffs
rely on Rizo v. Yovino (887 F.3d 453, 468), a 2018 decision by the Ninth Circuit that ruled
that federal law prohibits pay discrimination based on salary histories. But this decision was
vacated and remanded in 2019 by the Supreme Court, and later once again reaffirmed by the
Ninth District (Lobel, 2020).

Conclusion

Evidently, federal courts at least, do not have a stable position on this. This dispute in
particular has yet to be resolved. The exact outcome appears uncertain; considering the
number of petitions that plaintiffs make, which are not just limited to a request for redress,
but also include liquidated damages; an order for the reinstatement or front pay of benefits for
those plaintiffs that lost their jobs; and an order appointing a monitor to oversee Nike’s
compliance with any injunction provisions, among others, it seems unlikely that all petitions
will be granted by the Court.

However, the complaint seems well based: the facts look compelling and sounding, and the
legal arguments are convincing. Also, past cases appear to favor the position of plaintiffs:
Uber, for instance, has had to settle similar disputes in the past years (U.S. Equal Opportunity
Commission, 2019). Even if that case was settled before the Court reached a decision, the fact
alone that it was settled is a strong indicator that cases brought against major companies
involving sex discrimination in the workplace are taken seriously by the institutions of
government (including the judiciary).

All this considered, it seems that a likely outcome is for the Court to side with plaintiffs, at
least in some of the causes of action they have raised, and rule that Nike is indeed liable for
breach of federal and/or state law.
References

Hensler, D. R. (2009). The Globalization of Class Actions: An Overview. The Annals of the
American Academy of Political and Social Science, Vol. 622, pp. 7-29.

Lobel, O. (2020). Knowledge Pays: Reversing Information Flows and The Future Of Pay Equity.
Columbia Law Review, Vol. 120 (No. 3), pp. 547-612.

(2019). Uber to Pay $4.4 Million to Resolve EEOC Sexual Harassment and Retaliation Charge,
U.S. Equal Opportunity Commission. Retrieved from https://www.eeoc.gov/newsroom/uber-
pay-44-million-resolve-eeoc-sexual-harassment-and-retaliation-charge