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Filing a Sexual Harassment Lawsuit Under a Pseudonym

Posted December 10th, 2018 by Nicole Wiitala in Gender Discrimination and Harassment.

The Federal Rules of Civil Procedure generally require that a publicly filed lawsuit name all the parties involved.  However, under certain circumstances, plaintiffs can avoid disclosing their name by filing a lawsuit using a pseudonym (such as “Jane Doe” or “John Doe”).  Although the use of a pseudonym commonly arises in sexual harassment cases, some courts are reluctant to allow a plaintiff to proceed pseudonymously based solely on allegations of sexual harassment.  Other bases, such as a reasonable fear of reputational damage or the risk of psychological harm if the litigant’s true identity is revealed, are often required for a plaintiff to proceed anonymously.

Most courts apply a multi-factor balancing test to determine whether a plaintiff can proceed anonymously.  These tests can vary depending on the jurisdiction, but generally cover the same issues and concerns.  See John Doe v. Trustees of Dartmouth Coll., No. 18-CV-690-JD, 2018 WL 5801532, at *3 (D.N.H. Nov. 2, 2018).  For example, the Second Circuit considers, among other factors, whether (1) the litigation involves matters of a highly sensitive and personal nature, (2) identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously, (3) identification presents other harms and the likely severity of those harms,  including whether the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity, (4) the plaintiff is particularly vulnerable to the possible harms of disclosure, and (5) the suit challenges the actions of the government or that of private parties.  Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008).  The tests applied by other jurisdictions generally cover the same issues and concerns.  See John Doe v. Trustees of Dartmouth Coll., No. 18-CV-690-JD, 2018 WL 5801532, at *3 (D.N.H. Nov. 2, 2018).

One common basis for proceeding pseudonymously is a plaintiff’s reasonable fear that they will suffer reputational harm and damage to their career and employment prospects if their true identity is revealed.  This is particularly relevant in the Title IX context, as cases alleging sexual abuse on college campuses have garnered significant media attention in recent years.

Courts have also allowed plaintiffs to proceed pseudonymously where public disclosure of their name is likely to result in psychological harm.  Courts have recognized that forcing a litigant who is currently undergoing psychological treatment to reveal their true identity may be detrimental to their progress.  See Doe v. Cabrera, 307 F.R.D. 1, 6 (D.D.C. 2014).

Notably, one relevant factor in determining whether plaintiffs can proceed under a pseudonym is whether their identity has thus far been kept confidential.  Thus, plaintiffs who publicly identify themselves in the media may not be permitted to proceed under a pseudonym.  As another example, a plaintiff whose name was publicly released in an underlying criminal proceeding may be precluded from using a pseudonym.  If, however, the plaintiff made significant efforts to preserve the confidentiality of his or her identity, the court may allow the plaintiff to use a pseudonym.  Compare Doe v. Oshrin, 299 F.R.D. 100, 103 (D.N.J. 2014) (allowing plaintiff to proceed via pseudonym where her identity was kept confidential throughout the criminal proceedings) with John Doe v. Trustees of Dartmouth Coll., No. 18-CV-690-JD, 2018 WL 5801532, at *4 (D.N.H. Nov. 2, 2018) (the fact that plaintiff’s identity was not confidential in previous criminal proceedings weighed against the use of a pseudonym).

If you believe the public disclosure of your identity may result in reputational damage, retaliation, or psychological trauma, you may be able to file a lawsuit anonymously using a pseudonym.  Sanford Heisler Sharp, LLP has experienced employment discrimination and sexual harassment lawyers in New York, Washington, DC, Baltimore, San Francisco, San Diego, and Tennessee, who can assess the circumstances of your case.

Nicole Wiitala is an Associate in the New York office of Sanford Heisler Sharp. Ms. Wiitala began at Sanford Heisler Sharp as a law clerk in September 2015.
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