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After a little more than a day of deliberations, a federal jury in Portland found Wednesday that Nike discriminated against former employee Heather Hender by paying her less than her male peers and promoting her more slowly.
She worked for Nike as an engineer from 2015 to 2020.
The jury awarded her $19,739.52 in economic damages, the maximum it could award, and $7.5 million in punitive damages under an Oregon law. The verdict form also includes a $7.5 million punitive damages award under a federal law.
It remained unclear late Tuesday whether the two amounts are a single award, or whether the jury awarded Hender $15 million in punitive damages. The judge in the case also could award additional economic damages.
The punitive damages award far exceeded the $2 million requested by one of Hender’s lawyers during her closing argument.
Punitive damages are designed to punish defendants for bad behavior. Under Oregon law, they can be awarded if jurors find a defendant acted with malice or reckless indifference. The court is required to review the award to determine if it is reasonable.
Also under Oregon law, the state receives 70% of any proceeds, which fund a criminal injuries compensation account and a state court fund. The balance goes to the plaintiff. It was not immediately clear if the federal punitive damages award would be subject to the same deductions.
Hender, who testified for four hours of the six-day trial, tearfully hugged her attorneys after the verdict was delivered.
“I am cognizant that this might be a closing of a chapter for me … but there are many people out there in many different companies whose stories haven’t been told that are … experiencing the type of things that I experienced,” she said in a brief interview. “And I’m hoping more people will think that they might have a chance, that people will believe.”
Lawyers for Nike and Hender offered wildly differing accounts of the company’s conduct and culture during the trial, including in opening and closing arguments.
Hender’s lawyers described the case as a story about Nike’s failure to deliver on promises it made to reform its alleged “boys’ club” culture after a 2018 corporate reckoning. Nike maintained it was a narrow case about whether Hender had been paid and promoted fairly. The company’s lawyers argued she had been.
The disagreement continued in post-verdict comments.
“We are grateful to the jury for holding Nike accountable,” said Laura Salerno Owens, one of Hender’s attorneys. “Justice has prevailed, not just for our client, but for all women at Nike. This victory sends a message that workplace discrimination is unacceptable and has a price, the boy’s club culture has to go, and corporations will be held accountable for their discriminatory practices.”
A Nike spokesperson said the company was “disappointed” in the verdict and disagreed with the jury’s conclusion.
“Nike is committed to providing a workplace where employees are treated fairly, compensated competitively, and given opportunities to grow and succeed,” the spokesperson said in a statement.
The lawsuit, filed in 2018, originally made sweeping claims about the treatment of women at the sportswear giant. Nike has consistently disputed those accounts.
The effort to make the lawsuit a class action failed in 2022, and again this year, but it’s about to get rebooted.
“We intend to appeal the denial of class certification in order to seek to extend the type of remedy obtained by our client to other female employees who were victims of Nike’s gender discrimination,” Byron Goldstein, who also represented Hender, said in a statement.
Because three of the four remaining plaintiffs settled their claims against Nike last year, the trial was mostly limited to Hender’s pay and promotion experience. Nike successfully argued that more sweeping evidence about sexual harassment and discrimination would unfairly prejudice the jury.
At trial, Hender’s witnesses included Melanie Strong, a former Nike vice president who helped organize the Starfish survey, a 2018 questionnaire completed by women at the company that yielded sometimes-graphic first-person accounts of senior Nike employees engaged in sex discrimination and harassment.
“We started Project Starfish because as more senior women we felt like it was our responsibility to make the culture a better place for people to feel like they could be successful,” Strong testified last week.
Hender didn’t participate in Project Starfish, but after the jury verdict she described it as an “act of bravery that started all of this.”
Another key witness for Hender was David Neumark, a professor and labor economist at the University of California, Irvine. Neumark studied pay disparities at Nike using data the company provided to Hender’s attorneys during discovery. He concluded Nike had a gender pay gap of more than $11,000 per employee between 2015 and 2019.
Nike disputed Neumark’s analysis, including by arguing he classified employees too broadly and he didn’t directly study Hender’s compensation.
Nike’s witnesses included Hender’s three managers from her time at Nike. Each testified Hender was not discriminated against in pay or promotions, which a Nike lawyer said in his closing argument was the “best evidence” that she had not been discriminated against while employed by the company.
Throughout the trial, onlookers stopped in to listen to arguments, including lawyers not involved in the case, law students and courthouse interns. Former Nike employees, including Sara Johnston, one of the original plaintiffs, also attended parts of the trial.
The eight-person jury included seven men and one woman, who was elected as its foreperson. Members were attentive throughout four days of witness testimony, taking notes in court-provided notebooks. They voted unanimously on all counts.
“The court will receive the verdict and discharge this jury with the thanks of the court,” U.S. District Judge Amy Baggio said.
MORE BY MATTHEW KISH
Baggio previously described the lawsuit, which is less than a month shy of its eighth anniversary, as “fiercely litigated.” On the first day of witness testimony, she advised the lawyers for both sides to stop “nodding or shaking” their heads when “the other side is talking.”
After the jury was released, Nike’s three lawyers and Hender’s three lawyers stood and shook hands.
Hender didn’t have a celebration planned after her big day in court. She said she planned to go home and “get ready for work tomorrow.”
Matthew Kish is a business reporter who covers the apparel and banking industries. He previously wrote for Business Insider and the Portland Business Journal. In 2017-18, he was a Knight-Bagehot fellow in... more
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