Posted May 31st, 2019.
Patrick Dorrian – Bloomberg Law
- Firm can reveal names to investigate women’s allegations
- Court still weighing if women can pursue case using aliases
Jones Day may disclose the identities of female lawyers suing the firm for alleged sex discrimination, but the disclosure must be limited to its investigation of their allegations and the firm’s preparation of its initial response to the lawsuit, a federal judge ruled May 30.
The unnamed plaintiffs have argued that they could be branded with a “scarlet letter” and blacklisted from other major law firms if their identities were disclosed. Jones Day has countered that granting anonymity in and of itself “impugns” the firm’s reputation by suggesting it would improperly retaliate against the women, and that the sort of exceptional circumstances in which a court can allow plaintiffs to proceed with a pseudonym aren’t present in this case.
Judge Randolph D. Moss’ limited order means that the firm can use the anonymous plaintiffs’ names and identities for the purposes of its investigation. Jones Day representatives can identify the plaintiffs, for example, to figure out which other lawyers at the firm might have information relevant to their allegations. The anonymous plaintiffs may yet be unmasked if the case goes to trial.
The lawsuit is one of several sex bias complaints leveled against premier law firms since 2016, including Morrison & Foerster, Ogletree Deakins Nash Smoak & Stewart, Proskauer Rose, Chadbourne & Parke (now Norton Rose Fulbright), and the now-defunct firm Sedgwick.
Those cases were filed by Sanford Heisler Sharp, which also represents the women suing Jones Day.
The question of workplace anonymity when an employee alleges illegality like gender bias or sexual harassment is complex. Two federal agencies have even split over the issue—with the Equal Employment Opportunity Commission arguing broadly for more privacy for complainants. The way courts handle undisclosed plaintiffs in particular cases can have a major impact on future potential litigants, given the significance of professional reputations and references in the insular world of “big law” firm practice.
Sanford Heisler attorneys declined to comment, and representatives of Jones Day didn’t immediately respond.
‘Black Box’ Pay Practices
The women seeking to pursue the case without identifying themselves are four of the six lawyers who sued Jones Day last month. Nilab Tolton and Andrea Mazingo sued using their real names. They and the anonymous attorneys accuse the international law firm of systematically denying female associates equal pay and career opportunities through the use of a “black box” compensation system and other employment practices.
Proceeding anonymously in a lawsuit is a rare occurrence and requires a plaintiff to show the court that there are exceptional circumstances that justify using a pseudonym. Courts typically consider whether the issues in a case are of a highly sensitive, personal nature; whether the complainant might be in real physical danger; or if the disclosure would bring about the same kind of harm that the plaintiff’s complaint alleges in the first place.
Federal judges in New York recently rejected bids to remain anonymous by workers suing Morgan Stanley and a Toyota dealer for employment discrimination.
Moss’ minute order additionally requires the women to provide any further evidence they have to support their request to proceed under the pseudonym “Jane Doe.” Two women living in the U.S. have until June 12 to provide the additional evidence and two others “travelling abroad” have until June 19, Moss said.
The remainder of a prior order sealing portions of the record in the case remains in place until the women’s motion to pursue the litigation anonymously is decided, the U.S. District Court for the District of Columbia said in a May 30 docket entry.
Jones Day is representing itself.
The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, minute order 5/30/19.