Litigating Sexual Harassment: Attacking an Old Problem Using Creative Approaches

Have you litigated the issue of whether a plaintiff in a typical sexual harassment case has the right to use a Doe pseudonym in his/her civil court complaint while identifying individual defendants by name? Any thoughts on the issue? Great program.

Thank you for the positive feedback and thoughtful question. My response is below: While I have not had to litigate this issue specifically, I have worked on cases in our local jurisdiction—both in Illinois state court (Cook County) and federal court (Northern District of Illinois)—where we filed cases under pseudonyms (John Doe/Jane Doe). In my experience, no defendant has opposed or sought to brief the issue. That said, my understanding of confidentiality in federal courts, particularly within the Seventh Circuit, is that it is generally the exception rather than the rule. Courts tend to disfavor making litigation private except in specific circumstances. It’s important to balance the requirements of Federal Rule of Civil Procedure 10(a) with the local jurisdiction’s case law and standards on this topic. Rule 10(a) requires complaints to “name all the parties.” However, there are exceptions. For instance, in Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004), the court noted that a party seeking to proceed anonymously must demonstrate that “the harm to the [party] ... exceeds the likely harm from concealment.” One of these exceptions involves cases of sexual assault. In Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997), the Seventh Circuit observed that “fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses.” Similarly, other jurisdictions, such as the Fifth Circuit, have supported anonymous pleadings when a named plaintiff in a sexual assault case may face harassment. As a takeaway, just remember to balance your client’s confidentiality interests and concerns about harassment/public exposure with the rule. I hope this helps clarify the issue.