As independent contractor misclassification suits proliferate, strippers or exotic dancers have become the “poster children” for this type of lawsuit as they are particularly vulnerable to practices designed to pay them less, according to some plaintiffs’ attorneys (153 DLR C-1, 8/8/14). Labor Solicitor Patricia M. Smith has noted that exotic dancers are among the leading categories of employees who are bringing such actions (218 DLR C-1, 11/12/14).
SFBSC Mgmt., LLC, illustrates a new tactical battleground that may be emerging in these cases, as dancers strive to protect their privacy by proceeding anonymously, and nightclubs argue that this prejudices their ability to defend these cases, as well as the public’s interest in knowing the parties’ identities.
The dancers sought to proceed under “Jane Roe” pseudonyms, arguing that the suit will involve details of a “highly sensitive and personal nature” and that exotic dancing carries “a significant social stigma.” They asserted that they faced a “risk of injury” by nightclub patrons if their real names were disclosed, that disclosure could “affect their future employment prospects outside the adult nightclub industry,” and that other potential class members will be “hesitant” to join the suit if they cannot proceed anonymously.
The management company that operated a number of nightclubs featuring nude and semi-nude dancing argued that the claimants had not shown a reasonable threat of harm from being made to proceed under their own names, and that anonymity would impede discovery in the case and deny it effective res judicata defenses in the future.
The Ninth Circuit held in a 2000 decision that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity.”
The district court found that the claimants had identified an “adequate threat of personal embarrassment and social stigmatization” that “militates for allowing them to proceed under Jane Roe synonyms.” It also noted that the case fell into the “sensitive and highly personal” area of human sexuality, in which courts have often allowed parties to use pseudonyms, and that the company did not deny that possible physical and career harm are among the reasons it is customary for exotic dancers to use stage names.
Exotic dancers’ need for anonymity, the court held, outweighed any prejudice the company may face in asserting a res-judicata defense to later-filed actions by the same individuals, since the claimants had earlier provided their real names to the company under the confidentiality terms of a protective order. Discovery concerns were or could be addressed, the court stated, since the dancers did not object to identifying other clubs at which they have worked and the court could use its power to shape discovery to avoid any impediments anonymity may cause.
The court likewise found that the dancers’ need for anonymity outweighed the public's interest in knowing their identities, since there was nothing about their identities that made it critical to the working of justice to reveal them, the important facts of the claimants' employment, the company’s challenged conduct, its defenses, and the applicable law would be open to the public, and the use of pseudonyms served the public interest by allowing the suit to go forward without fear of employer reprisals.
It will be interesting to see whether this issue will arise in misclassification suits brought by exotic dancers in other circuits. It would seem logical for dancers to try to maximize participation through the use of pseudonyms. On the other hand, as nightclubs try to fend off such collective/class actions challenging the independent contractor business model, they will be tempted to try to turn dancers’ penchant for privacy into a defense advantage. It seems likely that the opposing arguments in this case will resurface, along with the differing views expressed as to the seriousness of the risks involved in revealing dancers’ true identities.
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