Judge Reverses Earlier Decision: Ex-Employee Can't Sue Planned Parenthood for Race Discrimination as a "Jane Doe"

[UPDATE 11/17/2015 10:21 am: Sorry, post title originally accidentally omitted the "as a 'Jane Doe'" (which of course is what this decision is about, see below); I've revised the title to include it. My apologies!]

In September, I wrote:

Ex-Employee Can Sue Planned Parenthood for Race Discrimination as a "Jane Doe," Because Abortion Providers Had Been Physically Attacked

Jane Doe, a former Planned Parenthood employee, is suing Planned Parenthood for race discrimination (and some related employment claims). Usually, employment claims are brought in the plaintiff's own name, at least unless there's some highly personal element (such as alleged sexual assault) that's part of the case.

But Doe asked to be pseudonymous—and was allowed to be pseudonymous—simply on the basis that her having worked at Planned Parenthood might expose her to criminal attack. On this theory, anyone who worked for an abortion clinic would likewise be entitled to pseudonymity in any case in which such employment would be disclosed. In principle, the same would be true as to any other occupation where there appears to be some general risk of violence due to public hostility—or for that matter any case where the person's political or religious views might expose them to some such general risk. And the judge just granted the motion (Doe v. Planned Parenthood of Illinois (N.D. Ill.))….

Friday, though, the judge reversed that decision:

This court's prior order allowing plaintiff initially to proceed under a pseudonym is vacated. Plaintiff's generalized statements of danger do not outweigh the normal rule that parties to federal cases must proceed under their names.

Here's part of Planned Parenthood's motion that led to the reversal:

While Plaintiff claims she fears "credible threats to [her] personal safety, including harassment, doxing, and physical harm," she does not identify any specific threat made to her or any former employee of PPIL. Instead, she cites general incidents where PPIL clinics were targeted. Moreover, Plaintiff does not allege in her Complaint or Motion to Proceed Under Pseudonym and for a Protective Order that PPIL harassed her or threatened her physical safety. Rather, Plaintiff's claims involve allegations of discrimination based on her race, national origin, sex, sexual orientation, and age as it relates to her compensation. Further, Plaintiff acknowledges that she does not reside in the community served by the former PPIL Englewood Clinic (or any community served by PPIL), so any perceived personal threat against Plaintiff's personal safety by individuals in the Englewood Community is certainly a stretch.

Furthermore, Plaintiff has not shown any exceptional circumstances that would justify allowing her to proceed anonymously in this Complaint. In rare circumstances, courts will allow parties to proceed anonymously "to protect the privacy of children, rape victims, and other particularly vulnerable parties." Plaintiff is not a child; she does not allege that she is a rape victim; and, she is not a vulnerable party. She likewise has not identified a real, specific threat of harm to her physical safety. If this Honorable Court allowed Plaintiff to proceed under a pseudonym in this case, then the Court would essentially be opening the floodgates by signaling that any former PPIL employee (or any employee who performed work for a "controversial" employer) could proceed anonymously in court when filing a Complaint involving allegations of employment discrimination related to compensation. This result would be absurd and counter to Rule 10(a) and the presumption of public court filings.

I think the reversal is correct; here's my thinking from the September post:

Public access to information about civil cases "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." This access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and the Judiciary's "institutional integrity." "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification."

And this applies to the names of the parties as well. "[A]nonymous litigation" thus "runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes." "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts."

Party names often offer the best clue for discovering further information about the case. Consider journalists who write about civil litigation. Without party names, they are limited to what they can glean from the filings and what the pseudonymous parties' lawyers are willing to reveal.

But armed with the names, they can investigate further. They can contact the parties' coworkers, business associates, or acquaintances. They can search court records in other cases to determine whether the fact pattern in this case had led to other litigation. They can more generally see what other cases have been filed by the plaintiff or against the defendant and see whether the parties have been found to be credible or not credible in the past. They can determine whether the parties might have ulterior motives for litigating.

Pseudonymity also tends to lead to additional restrictions on public access as a case unfolds. Because filed documents will often contain information that indirectly identify a pseudonymous party, courts may need to outright seal other case information or enjoin a party from publicly revealing the pseudonymous party's name (or other details of the lawsuit) in order to maintain effective pseudonymity.

And allowing pseudonymity in one case invites pseudonymization of all other cases that raise similar concerns, "open[ing] the door to parties proceeding pseudonymously in an incalculable number of lawsuits" of that kind. See, e.g., Doe v. Fedcap Rehab. Servs. (S.D.N.Y. 2018) ("At bottom, Plaintiff wants what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it."). Courts have therefore treated litigating under a pseudonym as implicating the right of public access to judicial proceedings. And, because of this, all "circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation."

Concrete evidence of specific threats to this particular person might suffice to justify a rare exception to this general rule. But it can't be enough that there's some evidence of past attacks against some Planned Parenthood ex-employees, Jews suing over anti-Semitism, police officers, employees of controversial political organizations, etc.

That post also quotes more from the plaintiff's argument for pseudonymity.