Naomi R. Shatz, BridgeTower Media Newswires
In April, six women filed a proposed class action gender discrimination, sexual harassment and pregnancy discrimination lawsuit in federal court in D.C. against international law firm Jones Day, with four of the women proceeding under the pseudonyms “Jane Doe 1-4.”
The court initially allowed this, stating that “[p]laintiffs’ significant interest in maintaining their anonymity at this stage of the litigation is sufficient to overcome any general presumption in favor of open proceedings.”
Jones Day vigorously contested this move, arguing that by allowing the women to proceed under pseudonym, the court was giving credence to the women’s argument that Jones Day would retaliate against them if their identities were public, that it prevented the public from assessing the claims, and that because the plaintiffs courted publicity, proceeding under pseudonym was inappropriate.
The law firm also argued that it could not investigate the women’s claims without knowing their identities.
In similar gender, pregnancy and family responsibility discrimination cases filed against Jones Day in 2018 and just last month, the plaintiffs chose to proceed under their own names.
Over the course of the litigation filed in April, all but one of the anonymous plaintiffs chose to reveal their identities. On Aug. 7, the judge presiding over the case issued a sealed order requiring the last remaining anonymous plaintiff to reveal her identity. Instead, Jane Doe 4 left the lawsuit.
The battle over pseudonyms in the Jones Day sexual harassment lawsuit highlights the significant cost of being a plaintiff in an employment discrimination lawsuit.
The women argued that pseudonyms were warranted because they feared retaliation from Jones Day and that such a suit would be a “scarlet letter” that would impede their career prospects moving forward.
There is a strong presumption that all judicial proceedings will remain open to the public. Nearly all of the federal appeals courts have created balancing tests to determine whether a pseudonym is appropriate. These tests require judges to weigh a number of factors, including:
• Whether the litigation involves highly sensitive or personal matters;
• Whether being identified poses risks to the party seeking pseudonyms (or to any other person);
• Whether being identified would cause the harm that the plaintiff brings the lawsuit to prevent;
• Whether the plaintiff is challenging private or government action;
• Whether the defendant will be prejudiced by the plaintiff proceeding by pseudonym, meaning whether it will prevent the defendant from fully investigating the claims and responding to them;
• Whether the plaintiff’s name has been kept confidential thus far;
• Whether the public’s interest in the case is furthered by having the identities of the parties revealed;
• Whether there is any other way to protect the plaintiff’s confidentiality.
Plaintiffs in employment discrimination claims have not had much luck proceeding under pseudonym in court.
As one federal circuit court held, “Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.”
Courts have held that while harassment may be a personal or embarrassing issue, it is not so personal that it justifies use of a pseudonym. They also have held that if individual defendants are named and subjected to reputational harm and embarrassment, fairness requires that the plaintiff similarly be named.
As high-profile cases from the worlds of finance, film and international journalism have shown, both people who complain of harassment and those accused of harassment, when publicly named, are often vilified, harassed and pushed out of their careers.
Sexual assault, however, is treated differently. Courts have widely recognized that sexual assault is a “highly sensitive” or personal matter that warrants use of pseudonyms. This rule has been applied to both the alleged victim of the assault and the alleged perpetrator.
In Title IX cases alleging that colleges have mishandled sexual misconduct cases, the plaintiffs (often men accused of misconduct) have overwhelmingly been permitted to litigate under a pseudonym so as not to have their reputations damaged by allegations they say are false.
In fact, in these cases, in which the motions are generally not opposed by the colleges, few courts undertake any analysis of whether proceeding by pseudonym is even warranted.
One key factor few courts are grappling with is that information travels in a fundamentally different way now than it did when the doctrines around pseudonymous litigation were developed.
Until very recently, if someone wanted to obtain information about a pending lawsuit, he or she would have to go to the courthouse and pore over paper files to find the relevant information.
Starting in the early 2000s, federal courts began to implement electronic filing, making all public documents from every case available online to anyone willing to pay a small fee to download them. Simultaneously, with news sources being available online, news about cases is now widely disseminated — and stored forever — on the internet.
Thirty years ago, the average plaintiff in an employment discrimination suit might risk a local news article if an intrepid reporter tracked down the case; now it is almost guaranteed that her name will be forever linked to the lawsuit online, where every Google search for her will turn it up.
Not only does the internet give every person access to information about lawsuits across the country, it itself provides an avenue for locating people and harassing or threatening them.
The U.S. District Court for the District of Columbia — the court hearing the Jones Day lawsuits — is one of the only courts that has recognized that we live in a wildly different world than the one in which these legal doctrines developed.
In a 2014 case, the plaintiff sought to proceed under a pseudonym while suing a major league baseball player for sexual assault. The court noted that “compelling the plaintiff to identify her name on every court filing would make the plaintiff’s name indefinitely available to?the public. Having the plaintiff’s name in the public domain, especially in the Internet age, could subject the plaintiff to future unnecessary interrogation, criticism, or psychological trauma, as a result of bringing this case.?... Although the Court appreciates the public benefits of the Internet, it has the unfortunate drawback of providing an avenue for harassing people as well.”
In that case, because the judge determined in part that litigating under her own name would cause the plaintiff psychological harm, he allowed her to proceed under pseudonym.
Open access to the courts is unquestionably a good thing; it allows the public to monitor the functioning of our government and understand how our laws are interpreted and applied.
The question now confronting courts is whether, in cases alleging discrimination and harassment, making plaintiffs’ names available to the public is necessary to serve that court-monitoring function, or whether the harms that can flow from being publicly identified as someone who has sued for discrimination outweigh those interests.
One major concern is that forcing plaintiffs to litigate under their own names will cause people with well-founded complaints to give up on exercising their rights rather than face the social and professional consequences of litigating publicly, as it appears one of the Jane Doe plaintiffs chose to do in the Jones Day suit.
As these cases continue to be litigated around the country, it seems more courts will have to follow the D.C. District Court and grapple with how to adapt existing legal doctrine to the online world in which cases are now disseminated so that the law can keep up with the realities of the world we live in.
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Naomi R. Shatz practices at Zalkind, Duncan & Bernstein in Boston. She represents high school, college and graduate students involved in disciplinary proceedings regarding claims of sexual assault, sexual harassment and academic misconduct, and clients in a variety of areas, including criminal cases, employment matters and civil litigation. The above article originally appeared on the firm’s blog, bostonlawyerblog.com.
