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Anonymous Workplace Harassment Suits Double in #MeToo Era

July 29, 2019, 10:30 AM

The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.

Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.

They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.

These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.

A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.

The use of pseudonyms in employment law cases, while rare, is increasingly relevant in an era marked by growing awareness of issues surrounding bias and harassment in the workplace. Recent cases in which workers have sought anonymity include lawsuits against Jones Day, Morrison & Foerster, JetBlue Airways Corp., the Federal Bureau of Investigation, and Morgan Stanley.

“It’s an important dimension of the #MeToo movement. The same things that have prevented people from coming forward to raise allegations makes them afraid to publicly attach their name” to a lawsuit, said Kalpana Kotagal, a partner with Cohen, Milstein, Sellers & Toll, who represents workers in class actions.

Management-side attorneys and companies, though, say the court system is supposed to be transparent, and that employers and all defendants have a right to know their accuser’s identity.

The idea of pushing for anonymity in employment cases is relatively novel, and some courts are hesitant to grant anonymity because they’re concerned about a “slippery slope,” said Sadina Montani, a shareholder at Vedder Price in Washington, D.C., who represents employers.

“Do there need to be more robust retaliation protections? Maybe, but the answer is not the degradation of long-standing traditions in the judicial system,” Montani said.

High Bar

Broadly speaking, federal courts require plaintiffs in employment suits to demonstrate exceptional circumstances to justify using a pseudonym. Courts consider several factors, including if the issues are highly sensitive, extremely personal, or create a likelihood of physical harm. Such considerations are generally weighed against the principles of judicial transparency and fairness to the defendant.

But ultimately, it’s a balancing test for the individual judge.

Recently, a judge allowed FBI workers suing the agency for a hostile work environment to proceed under pseudonyms, for now, because their safety would be jeopardized if they were unmasked. In another case, a restaurant worker suing Landry’s Inc. was allowed to move forward anonymously in the dispute where he alleged his superior sexually assaulted him, resulting in a sexually transmitted disease.

Yet, several cases from the past two years show that the bar is high in employment lawsuits: Courts have refused anonymity in cases where a woman detailed sexual assault and rape, where explicit photos of a woman were shared in her workplace, and in other cases involving personal details like workers’ sexual orientation and gender identity, according to a Bloomberg Law review of court documents.

Judge Jacqueline Scott Corley recently acknowledged the dilemma of granting anonymity to plaintiffs, during an April hearing of an ongoing dispute in which a group of women are suing Morrison & Foerster for pregnancy discrimination as Jane Does. She said there’s “no question” that identifying the women publicly would adversely affect their career. But she added doing so could also create a precedent for every other case because the same applies to all employment plaintiffs.

“I don’t think there’s any real way around the fact that judges are going to weigh differently the importance of someone’s concerns about embarrassment and stigma,” said Joan Steinman, a Chicago-Kent College of Law professor who’s studied pseudonymous litigation. “Some may be understanding and give it a lot of weight, and some may shrug. I’m not sure there’s anything a common law test can do that would prevent those exercises of judgment.”

Several federal appeals courts have developed multifactor balancing tests to guide judges in making the determination.

But those tests are so broad that they basically give complete discretion to the judge, said Lior Strahilevitz, a law professor at the University of Chicago. The principle of judicial transparency isn’t always a good fit in harassment cases, he said. A better approach is possible, especially because requiring named plaintiffs means fewer victims will come forward, Strahilevitz said.

“I think the courts could be well-equipped to deal with this issue, but it’s probably that some of them have chosen not to be,” Strahilevitz said.

Harm ‘Runs Both Ways’

The tension persists as more bias lawsuits are being filed against major corporations in recent years.

Companies generally argue that they have repercussions to their image as well. They also argue that plaintiffs should be identified because it allows them to prepare a better defense and that the plaintiffs also have the option to ask the court to seal proceedings that may be personal or sensitive.

Jones Day pushed back in a recent class action against the firm, in which four of the six female attorneys alleging gender discrimination wanted to proceed anonymously. While the “Jane Does” argued they would carry a “scarlet letter” if they were unmasked, Jones Day said reputational harm “runs both ways,” since the employer being sued can’t hide its identity.

Three women decided to come forward before the court ruled. It’s “time to do away with the stigmatization of women who challenge discrimination and harassment in their workplaces,” they said in a statement. One is still fighting for anonymity.

Sensitive Matters Unmasked

Employment attorneys don’t frequently request anonymity, but can file a case under a pseudonym and request the court’s permission to proceed. The judge can then consider the argument. In recent cases, judges decided that other factors warrant disclosure.

A judge unmasked a woman in March who alleged she was drugged and raped at a New York Toyota dealer, and dealt with harassing comments about her body and Indian accent from her alleged attacker and co-workers. The court said the allegations were indeed “extremely personal” and “highly sensitive,” but it denied anonymity because the woman presented no evidence of continued harm.

Another worker who identifies as “genderqueer and trans-masculine” wasn’t allowed anonymity in a 2018 discrimination case. “Jamie Doe” said he wanted to reveal his gender identity on his own terms and feared his young child would get bullied if it became public, but the court said the factors weighed in favor of revealing his name.

In May, Mahmoud Latif, a former Morgan Stanley associate, argued for anonymity in his lawsuit alleging repeated harassment and retaliation as an openly gay, Muslim man. He argued that his sexuality is particularly sensitive because he’s from and still has relatives in Egypt—which has strict laws against homosexuality. A federal judge agreed with Morgan Stanley‘s request to unmask him, and Latif ultimately proceeded under his name.

When courts decide to unmask a plaintiff or a company pushes back, the employer could then have greater leverage to force the plaintiff to drop or settle the case, said Abraham Melamed of Derek Smith Law Group. He said his firm, which represents workers—including in the cases against Morgan Stanley and Toyota dealer—has had more failure than success in being granted pseudonymity over the past year.

He said he feels he can no longer guarantee clients anonymous status in sensitive cases when they come to his office with a case.

“There is no question in my mind that it will have a chilling effect on sexual harassment to unmask alleged victims,” Melamed said.

Bloomberg Law’s analysis included employment disputes alleging illegal workplace behavior based on gender, age, race, and national origin, and those alleging sexual harassment and harassment based on gender that used the common pseudonym “Doe” or included a motion to proceed anonymously. It focused on lawsuits in federal district courts between 2015 and 2019 and didn’t include employment cases alleging violations based on wage and hour and disability.

—With assistance from Jasmine Ye Han

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Cynthia Harasty at charasty@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com