Morrison & Foerster was hit May 3 with a proposed class action by three associates who allege they were discriminated against after taking maternity leave. What makes the case unusual is that the associates are hoping to sue anonymously.
The women, all based in California, allege they were held back a year and cut off from work opportunities after they became pregnant and took maternity leave.
The plaintiffs’ attorneys have said they sued under pseudonyms to protect the women from press scrutiny as the lawsuit gets underway. The women know that if the case heads to trial, their names will become public, according to their lawyer David Sanford.
“Plaintiffs’ lawsuit implicates sensitive information, including confidential health information and information pertaining to plaintiffs’ minor children,” Sanford wrote in a memorandum accompanying the complaint. “In addition, plaintiffs are concerned that filing this complaint under their true identities at this time will further interfere with their standing amongst partners and peers at the Firm, and allow MoFo to publicly impugn their professional reputations in an effort to chill this litigation and irreparably harm their future career prospects.”
This is the second high-profile case brought by Sanford against a Big Law firm in which the plaintiff has asked to remain anonymous. Connie Bertram, a partner suing her firm Proskauer Rose for gender discrimination, filed a complaint under a pseudonym last year and only went public recently.
It’s not unheard of for federal courts to grant anonymity to plaintiffs. Norma McCorvey, the plaintiff from the Supreme Court’s landmark abortion case Roe v. Wade, litigated under the pseudonym Jane Roe. But courts don’t grant pseudonymity easily, usually reserving the practice for cases involving children, sexual abuse, or other sensitive claims, according to Lior Jacob Strahilevitz, a professor at the University of Chicago Law School.
“In general, the federal courts, at least in this country, have been skeptical of claims that people should be allow to sue under a John or Jane Doe,” Strahilevitz told Bloomberg Law.
At the same time, pseudonymous litigation is “increasingly common in our SEO-influenced world,” according to Erica Johnstone, a partner at Ridder, Costa & Johnstone and co-founder of Without My Consent, a nonprofit that helps individuals protect their online privacy.
“Court records are public records that are blogged, tweeted, and indexed,” she said. “And so, if the plaintiff ever hopes to have a life that is not defined by the wrong alleged in the complaint, then pseudonymous status is one of the helpful tools judges have at their disposal to balance the competing values of public access to government records with individual privacy rights.”
Most courts still require plaintiffs to show a direct risk of retaliation if they sue publicly, something that can be hard to prove when a risk of career damage is in the future, and not at a current employer, according to to Strahilevitz.
In the Morrison & Foerster case, “what the plaintiffs are probably concerned about is not their futures at Morrison & Foerster, it’s their futures at other law firms,” said Strahilevitz. “The courts haven’t been giving that as much weight as it ought to be given.”
He said the associates would be “breaking some new ground” if they succeed their bid to use pseudonyms.
One thing that may help the associates, according to Strahilevitz, is that their complaint does not name any of the specific partners they allege engaged in discriminatory behavior. “Courts like to see symmetry between the plaintiff and the defendant,” he said.
In this respect, the Morrison & Foerster case is different from other recent Big Law gender discrimination cases, where managing partners and other leaders have been named as co-defendants alongside their firms.
“It acts fairly by granting individual actors comparable anonymity to what the plaintiffs seek,”said Deborah Marcuse, another partner at Sanford Heisler Sharp representing the associates.
Marcuse said the lack of individual names also “keep[s] the focus on the firm culture as a whole, which is where it belongs in cases like these, which are never about one or two bad actors.”
This will likely prove challenging to the plaintiffs, according to Northwestern University professor Laura Beth Nielsen, who believes the U.S. court system isn’t set up to fully address the types of problems this lawsuit hopes to address.
“We’re starting to see the problem of gender relations in the workplace as part of something broader,” said Nielsen, who teaches sociology and directs the university’s Center for Legal Studies. “It definitely includes overt discrimination, but it also includes implicit bias and all of these different things.”
“Really trying to put the emphasis on culture rather than the individuals in the dispute, it’s something the law doesn’t do very well,” she said.