Posted May 21st, 2019.
(Reuters) – It can be grueling to speak up when you are subjected to workplace discrimination. Equal rights laws prohibit retaliation, but employees routinely allege in lawsuits that they’ve experienced it. Suing to enforce your rights, unfortunately, often means putting your career, and perhaps even your well-being, at risk.
Do those risks justify anonymous litigation?
That question is about to be scrutinized by U.S. District Judge Randolph Moss of Washington, D.C., in a gender and discrimination class action against Jones Day. The suit, filed by Sanford Heisler, names two plaintiffs, former Jones Day associates Nilab Tolton and Andrea Mazingo and asserts additional allegations by four former associates identified as Jane Does. On the day the suit was filed, Sanford Heisler sought permission from the court to maintain its clients’ anonymity, arguing that confidentiality is necessary to shield sensitive health information and to protect the career prospects of these young lawyers.
U.S. District Judge Beryl Howell of Washington granted the motion on the day it was filed. She held that despite the presumption of open court proceedings, the plaintiffs’ significant privacy concerns outweigh the minimal public interest in their identity, at least at this early stage of the litigation. When Judge Moss took over the case several days later, he entered an order upholding their anonymity.
Jones Day, which is representing itself in the class action, denies that the firm engages in gender or pregnancy discrimination, pointing in a statement to its 240 women partners and its recent record of appointing to partnership both men and women who have taken parental leave. The firm also believes it has been disadvantaged by the anonymity of four of the lead plaintiffs. On Monday, Jones Day filed a motion to compel the four Jane Doe plaintiffs to come out from behind their pseudonyms.
“Jones Day has not found a single case in which a court, over objection, has authorized the use of pseudonyms for civil plaintiffs alleging sex discrimination by a former employer,” wrote Jones Day partners Mary Ellen Powers and Terri Chase. “That is because such claims do not involve personal information of the ‘utmost intimacy’ or give rise to credible fears of unlawful retaliation. This case is no exception. The Jane Does may prefer to attack Jones Day from beneath a cloak of anonymity, but as a matter of law and basic fairness, they must be ‘willing to place their personal and public stamp of approval upon their causes of action.’”
Judge Moss ordered Sanford Heisler to respond to the motion by Thursday. “We look forward to responding in our papers,” said plaintiffs’ lawyer Deborah Marcuse, who declined to make any additional statement on the filing.
Jones Day’s motion got me thinking, again, about anonymity in employment discrimination suits. In particular, because Jones Day contends that courts have not allowed plaintiffs in any previous case to shield their identity over defense objections, the motion prompted me to wonder whether there’s something different about suing a big law firm than raising allegations against any other employer.
I’ve decided there is – but I believe that means lawyers should be more willing, not less, to use their real names when they file suits.
That’s easy for me to say, of course. I haven’t experienced gender discrimination at work so I don’t know its debilitating effects firsthand. Nor do I represent clients who believe their careers will be destroyed if they’re known to have sued powerful firms. There are exceptions to every rule, including the presumptive rule that bringing a lawsuit means public exposure. I’m sure Sanford Heisler will argue in its opposition to the Jones Day motion that its clients meet the extraordinary criteria for anonymity.
But as a general principle, you signal faith by using your name. And lawyers, of all people, ought to have faith if they’re using litigation to effect change.
Consider the converse. As Jones Day pointed out in its motion to compel identification of the plaintiffs suing the firm, Sanford Heisler has brought several other high-profile gender discrimination suits against big law firms in the past few years. Almost all of the plaintiffs in those suits have been named. (A Proskauer partner who sued her firm originally filed under a pseudonym but subsequently amended her complaint to include her name.) The exception, in addition to the class action against Jones Day, is a class action against Morrison & Foerster in which all of the plaintiffs are using pseudonyms.
Morrison & Foerster, which denies allegations of gender discrimination, has not challenged their anonymity. But at a hearing last month, U.S. Magistrate Judge Jacqueline Corley of San Francisco told Sanford Heisler’s Marcuse that her clients’ circumstances are really no different than those of other employees alleging discrimination. In fact, Judge Corley said, the former lawyers are better positioned than workers with lower wages and less education, yet precedent requires those employees to use their own names except in extraordinary circumstances.
“No question that it could have adverse affects on their career, but that’s also the case for every employment plaintiff that I have in front of me,” Judge Corley said. “So if I were to seal or allow them to proceed anonymously in this case, it would be precedent to allow it in every case. And that would certainly be contrary to 9th Circuit law.”
Marcuse argued that lawyers’ future employers are more likely to balk at hiring someone who has previously sued for discrimination and that the economic consequences of retaliation are more devastating for accomplished lawyers pushed out of their jobs. But Judge Corley pointed out that lots of plaintiffs come forward in suits with big stakes. As an example, she cited startup founders who sue a big company over trade secrets, risking the prospect of scaring away other suitors.
“Filing a lawsuit by anyone, actually, has negative consequences,” she said. “I don’t know how this case is special.”
Indeed, the most compelling evidence that former associates can step forward to sue powerful firms comes from the Jones Day case. Just look at the Law.com story about Tolton and Mazingo, the plaintiffs suing under their own names. They said their careers have not suffered because they’ve spoken up – and that they’re not worrying about fallout from the suit. “The fear for me,” Tolton said, is in not holding powerful institutions and larger employers accountable.”
We should expect law firms to celebrate equal protection laws. When they don’t, or when they retaliate against those who criticize them, it’s especially egregious. They ought to know better, and the civil justice system should treat them accordingly. But lawyers who want to prove that they believe in justice for equal rights violations should respect the system and sue in their own names.
The views expressed in this article are not those of Reuters News.