Sexual Harassment Plaintiff May Not Proceed Anonymously, Court Concludes Upon Application of 10-Factor Test

Sexual harassment cases, no doubt, involve sensitive subject matter. It is not surprising, then, that a plaintiff asserting such claims in court wishes to proceed anonymously. A recent decision illustrates the principles governing when and under what circumstances this may be done.

The case is Doe v. Gong Xi Fa Cai, Inc. d/b/a Alta Restaurant, 2019 WL 3034793 (SDNY July 10, 2019), in which plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and other statutes for alleged sexual discrimination and retaliation. The court denied plaintiff’s motion to proceed anonymously under the pseudonym Jane Doe.

In reaching this conclusion, the court summarized the relevant law:

Federal Rule of Civil Procedure 10(a) mandates that the title of a complaint name all parties to the litigation. “Courts have nevertheless carved out a limited number of exceptions to the general requirement of disclosure of the names of parties, which permit plaintiffs to proceed anonymously.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (alterations omitted). Pursuant to Sealed Plaintiff, in determining whether a plaintiff should be allowed to maintain an action under a pseudonym, the Second Circuit requires courts to balance “the plaintiff’s interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant.” Id. at 189, “This balancing of interests entails the consideration of several factors,” ten of which the Second Circuit has explicitly approved “with the caution that … district courts should take into account other factors relevant to the particular case under consideration.

The ten factors identified in the Sealed Plaintiff case are (formatting/paragraphing altered):

(1) whether the litigation involves matters that are highly sensitive and of a personal nature;

(2) whether identification poses a risk of retaliatory physical or mental harm to the … party seeking to proceed anonymously …;

(3) whether identification presents other harms and the likely severity of those harms …;

(4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure . .. particularly in light of [her] age;

(5) whether the suit is challenging the actions of the government or that of private parties;

(6) whether the defendant is prejudiced by allowing the plaintiff to press [her] claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court;

(7) whether the plaintiff’s identify has thus far been kept confidential;

(8) whether the public’s interest in the litigation is furthered by requiring the plaintiff to disclose [her] identity;

(9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identifies; and

(10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff[.]

The court proceeded to apply these ten factors to the facts. As to the first factor, for example, the court noted that plaintiff’s complaint “concerns matters that “are highly sensitive and of a personal nature by any objective standard” in that “[p]laintiff alleges that she was harassed and humiliated by Defendant[‘]s inappropriate, unwanted, and sexually motivated physical contact, as well as the retaliation that followed.” The seventh factor also favored plaintiff, since although plaintiff was named in the prior EEOC proceeding, “the documents involved in that proceeding were not public and that Plaintiff’s identity is not otherwise publicly known.”  The remaining factors favored defendants.

The court concluded that while it was “sympathetic to Plaintiff’s request” in that “[t]he desire to shield oneself from the fear of public scrutiny concerning matters of sexual harassment and retaliation is understandable,” here “[p]laintiff has not met her burden of demonstrating that her interest in proceeding anonymously outweighs the public’s interest in disclosure and prejudice to defendants.”