U.S. Magistrate Judge Joseph C. Wilkinson, Jr., has denied a request by a gay HIV-positive man to have his identity shielded from public exposure in the discrimination lawsuit he has filed against his former employer in the federal district court in New Orleans, Louisiana.
According to Wilkinson’s September 5 ruling on a motion filed by the plaintiff simultaneously with his discrimination complaint, the plaintiff is claiming violations of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, and the Americans with Disabilities Act, which prohibits employment discrimination against qualified individuals with disabilities. His motion states that he “is an HIV positive homosexual male with an understandable fear that if his health status is made public, it will negatively affect his life in multiple ways.” “The only specific concern expressed in plaintiff’s motion papers,” wrote Wilkinson, “is that he ‘believes . . . he will have difficulty finding new employment should his HIV status be made public.”
Wilkinson pointed out that the general rule is that parties to a lawsuit have to sue in their own name. In fact, the Federal Rules of Civil Procedure state that “the complaint of the title of the action shall include the names of all the parties” and, Wilkinson further notes, Title VII does not establish any exception to this general principle. Plaintiffs are not automatically entitled to proceed anonymously, although courts sometimes exercise their discretion to allow a particular plaintiff to proceed as “John Doe” or “Jane Roe.” Perhaps the most famous example is the Supreme Court’s leading abortion case, Roe v. Wade, in which the trial court accepted the plaintiff’s argument that due to the controversy about criminal abortion laws and her own situation as an unmarried pregnant woman when she filed the case challenging the Texas law, she should be able to proceed as “Jane Roe.”
Complaints filed in federal court are deemed to be public records that are open to the inspection of the public. When cases are deemed newsworthy, it is very common for news reporters to look at court files and publish the names of parties in reports about their cases. The plaintiff in this case did not want to be forced to “out” himself as both gay and HIV-positive in order to be able to vindicate his rights in federal court.
The plaintiff cited a 1979 decision by the 5th Circuit Court of Appeals, which identified “homosexuality” as one of the “matters” that might justify allowing a plaintiff to file anonymously, but that case was decided when “homosexual sodomy” was a crime in Texas. Then, as now, neither Texas nor federal law provided explicit protection against discrimination because of sexual orientation. In the case cited by the plaintiff, which did not involve homosexuality, the 5th Circuit denied a motion filed by sex discrimination plaintiffs who were concerned that their suit would make them vulnerable to retaliation by their present employer or prospective future employers, because they did not show that they would face a “greater threat of retaliation than the typical plaintiff alleging Title VII violations.”
Wilkinson asserted that the court’s record is “presumptively a public record, open to view by all, and requests to seal the court’s record are not lightly granted or considered.” He said that he would have to balance the public’s “common law right of access against the interests favoring non-disclosure,” and that the plaintiff would bear the burden to show that the interest in secrecy outweighs the presumption.”
“Weighing these factors in the instant case militates against permitting this plaintiff to proceed anonymously,” wrote Wilkinson. “Although sexual preference is certainly a personal matter and homosexuality is one of the ‘matters of a sensitive nature’ identified in the above-cited Fifth Circuit opinion, public opinion about both homosexuality and HIV positive status has become more diverse and accepting during the 35 years since that decision. Certainly, only the seriously uninformed today act under the erroneous impression that HIV transmission might occur in ordinary workplace activity. Other plaintiffs asserting claims in civil actions in which their sexual preference is an issue have done so publicly and in their real names,” he continued, citing the current lawsuit challenging Louisiana’s ban on same-sex marriage. “The plaintiff in the instant case is not challenging the validity of any governmental activity and will not have to admit violation of any laws or governmental regulations in pursuing these claims. He is not a child or incompetent person requiring extraordinary protection. Defendants — whose names have already been published in the court’s record — have been the subject of public accusations by plaintiff that may do damage to their good names, reputation and economic standing.”
Wilkinson also said that the “legal bases” for the plaintiff’s claims under Title VII and the ADA “are subject to debate.” Most federal courts have rejected the argument that discrimination because of sexual orientation is covered by the Title VII ban on sex discrimination, and lower courts are divided about whether an HIV-positive person would automatically be protected from discrimination under the ADA without specific evidence of physical or mental impairment. “The public interest in and level of debate over these kinds of topics appears high,” wrote Wilkinson.
The judge concluded that the plaintiff would not face any “greater threat of retaliation than the typical plaintiffs alleging Title VII violations under their real names and not anonymously,” so the plaintiff’s motion to “proceed under a fictitious name or, alternatively, to seal the entire record of this case” was denied.
The court’s opinion shows a particular insensitivity to the vulnerability of HIV-positive individuals, regardless of their sexual orientation, seeking a remedy for employment discrimination. While it might be true that “outing” oneself as gay is not quite such a big deal as it was 35 years ago, it is nonetheless a significant and terrifying step for many people, and studies show that anti-gay employment discrimination is still a major issue.
Furthermore, the court’s ruling is completely insensitive to the particular issues presented by the Americans with Disabilities Act, a statute that recognizes the confidentiality concerns of people living with disabilities by requiring employers to preserve the confidentiality of medical records and not unnecessarily disclosing the medical conditions of their employees. Thus, the judge’s focus solely on Title VII presents an incomplete analysis of the factors to be weighed.
The judge reveals his own ignorance about the nature of HIV-related discrimination, which is not confined to fears of contagion in the workplace. Employers may fear the impact on co-worker morale of having a colleague who is known to be living with HIV, as well as the potential impact on its employee benefits plan of covering HIV-related medication. Employers may also believe that a job applicant with HIV will have a poor attendance record, or will not be employed long enough to justify the investment in training for a new job. There might be many reasons why employers would discriminate against applicants known to be HIV-positive.
A decision requiring an HIV-positive person to disclose his or her serostatus in a public record as a condition of seeking redress for discrimination seems inconsistent with the remedial policy behind the ADA, since it could strongly discourage HIV-positive people with potentially valid claims from filing suit. It is particularly inconsistent with the 2008 ADA Amendments Act, which was intended by Congress to make clear that HIV-positive people are protected against discrimination, regardless what some uncomprehending federal trial courts have held.