The #MeToo Movement led to a groundswell in the field of employment law. It resulted in changes both at the federal and state law levels. But did it do enough, or should the law go even further to protect victims of sexual abuse and harassment?
It forever had been the legal practice to include confidentiality provisions in settlement agreements involving harassment and discrimination. This resulted in later victims of sexual abuse and harassment not knowing of earlier allegations against the alleged harasser. In 2018, a new federal law was implemented, eliminating tax deductions for settlements, payouts and attorneys’ fees in these types of cases if the payments are subject to a non-disclosure agreement. Sen. Elizabeth Warren tried to take it one step further, proposing a Senate bill, known as the Sunlight in Workplace Harassment Act, that would have amended the Securities Exchange Act of 1934 to require public companies to report sexual harassment financial data. In New York and New Jersey it is now state law that employers cannot require employees to agree to mandatory arbitration clauses, although some courts have already ruled that the Federal Arbitration Act pre-empts these laws.
Exposing harassers to the light of day is commendable. Had there not been a $100,000 penalty clause in a settlement agreement involving Dr. Larry Nassar and USA Gymnastics, perhaps other victims could have been protected. But what about the flip side? Little has been written about protecting the identities of plaintiffs in these types of cases. Having handled many of these cases, there has been a trend over the past decade that plaintiffs are becoming more reluctant to file suit for fear that potential employers will view them as litigious and not hire them. This is a well-founded concern especially considering that everything seems to find its way to the internet these days and many lawsuits can be located due to electronic filing. This leads to a question: Should sexual harassment and discrimination plaintiffs be allowed to file suit anonymously?
A recent case involving Jones Day, a large international law firm, dealt with this issue. The six plaintiffs in a sexual harassment and gender and pregnancy discrimination lawsuit in federal court in Washington, D.C. filed suit using Jane Doe pseudonyms. The court initially permitted it, giving credence to their argument that the law firm would retaliate against them if their identities were public. They also contended that the litigation would be their “scarlet letter” that would impede their career prospects. Some of the plaintiffs, however, sought publicity of their own and during the proceeding revealed their identities. In August, the Court also ordered the remaining Jane Doe to reveal her identity.
There is no doubt that most employers will not hire someone who they know sued a former employer. Should pseudonyms be allowed in these cases? Plaintiffs have not had much success in this regard. Courts have held that if individual defendants are named and subjected to reputational harm, the same should hold true for plaintiffs. But how many women have chosen not to file meritorious claims to avoid the professional consequences of litigating in a public forum? This is an interesting debate and may be the next issue legislatures grapple with in light of the continued relevance of the #MeToo Movement.
Sixty Minutes reported on the story of Emily Doe, who was sexually assaulted by a Stanford University swimmer and who wrote a first-person account of the criminal justice system in her memoir “Know My Name.” We now know that Emily, the pseudonym used in that criminal case, is Chanel Miller, and we shall see whether others in civil suits can keep their identities hidden from potential employers.