The major barrier to many New Yorkers filing an employment discrimination lawsuit is fear of public exposure or retaliation. Some people are simply embarrassed to come forward with their stories of sexual harassment or other workplace abuse. In many cases, employees are worried they will lose their jobs for exercising their legal rights.
The 10 Factors New York Courts Examine When Considering Requests to Proceed Under a Pseudonym
If you are in such a position, you may be wondering, “Can I file a lawsuit using a pseudonym,” i.e., as a “Jane Doe,” so that your name is not included in any public court records. The answer to this question is complicated. It is possible to file an employment discrimination complaint “pseudonymously,” but it may only be done under a narrow set of circumstances.
The U.S. Second Circuit Court of Appeals, which oversees all federal courts in New York, has established a list of 10 “non-exhaustive” factors that a trial judge must weigh before allowing a plaintiff to proceed without using his or her real name. These factors include:
- Does the lawsuit involve “matters that are highly sensitive” and primarily of a “personal nature”?
- Does identifying the party create a “risk of retaliatory physical or mental harm” to themselves or potentially innocent third parties?
- Would identifying the party incur a specific harm, including the harm the party is seeking to avoid by filing the lawsuit?
- Is the plaintiff especially vulnerable to these potential harms given his or her age?
- Does the lawsuit involve the government or a private party?
- Would the defendant be prejudiced in any way by allowing the plaintiff to proceed under a pseudonym, and if so, is there any way the trial court could “mitigate” such prejudice?
- Has the plaintiff's identity been kept confidential prior to the initiation of the lawsuit?
- Is there any public interest that would require disclosing the plaintiff's identity?
- Conversely, is there an “atypically weak public interest” in knowing the plaintiff's identity, given the nature of the legal issues presented?
- Is there any other mechanism available for protecting the plaintiff's confidentiality?
Keep in mind, these factors are simply a guide. The trial court has the ultimate discretion to decide whether a plaintiff should be allowed to proceed under a pseudonym. In fact, the burden is on the plaintiff to show why such special treatment is justified.
For example, a federal judge in Brooklyn recently held that an unidentified male plaintiff in an ongoing employment discrimination lawsuit could not proceed pseudonymously. The judge determined seven of the 10 factors specified by the Second Circuit weighed against the plaintiff's request. Even if all of the factors favored the plaintiff, the judge said he would still have denied the request due to the circumstances of the case.
Need Help With Your Sexual Harassment Complaint?
Coming forward with an employment discrimination complaint is never easy. You understandably have many questions about the legal process and the effect it will have on your life. If you need help addressing these concerns from an experienced New York employment discrimination attorney, contact the Law Offices of White, Nisar & Hilferty, LLP, today.