Court finds Nike pay equity studies are privileged, not discoverable

Nike engaged in systemic discrimination in pay and promotions, according to allegations by female employees at the company’s headquarters in an ongoing class action suit filed in the U.S. District Court for the District of Oregon. As part of the discovery (pretrial fact-finding) related to the case, the employees sought to review internal pay equity studies compiled by the shoe and apparel giant. The district court recently ruled, however, the company wouldn’t have to produce the documents because they’re protected by the attorney-client privilege and the litigation work-product doctrine.

Attorney-client privilege. Nike began developing the pay equity studies in 2016 with the assistance of outside counsel and HR experts, who also provided advice about the findings. In determining the studies were protected by the attorney-client privilege, the district court found:

• The studies were prepared primarily for a legal purpose—assessing and remediating the risk related to potential pay discrepancies; and
• Nike had implemented strict privilege protocols in developing the pay studies to maintain the attorney-client privilege.

Work-product doctrine. The court also found the documents compiled by Nike’s outside counsel and consultants are protected by the work-product doctrine. In support of the finding, the court noted the employer decided to move forward and develop the pay equity studies “to address potential legal liabilities for pay inequities” after receiving Equal Employment Opportunity Commission (EEOC) charges alleging the bias as well as similar internal complaints.