It exploded like a Mk 2 in Call of Duty: Multiple allegations of sexual harassment at Activision Blizzard, one of the largest game publishers in the industry. Male employees drank copious amounts of alcohol and crawled into cubicles where women worked. Ubiquitous rape joke. The “Cosby Suite”, so named because an executive who worked there was particularly known for his unwanted sexual advances.. And the story of an employee who committed suicide after coworkers circulated a nude photo.
When the California Department of Fair Employment and Housing (DFEH) first detailed Activision’s toxic workplace in an astonishing 29-page complaint on July 20 – which details the above allegations, between other allegations – the trial caused a lot of noise. And there were ramifications, too: The company’s stock price took a hit. Senior executives resign. There has been a new push for unionization at Activision. And elsewhere, a larger conversation erupted as to whether the video game industry was truly prepared to heed allegations of sexual harassment and sexual assault.
But there is more to what happened – in particular, at the end of the investigation. A remarkable legal battle is currently developing between two government agencies responsible for combating inequalities at work. Now, with discussions about the potential destruction of evidence and malpractice accusations, a turf war is emerging between federal and state agencies.
According to an Oct. 8 filing around midnight by the U.S. Equal Employment Opportunity Commission (EEOC), investigations into the Santa Monica-based manufacturer of hits such as Call of Duty and World of warcraft was triggered when an anonymous human resources employee filed a complaint about a hostile workplace in early 2018. The government heard for the first time what was happening to the women who worked at Activision, but who would be responsible for verifying the truth ? At the time, it is now revealed that the EEOC and DFEH had a work-sharing agreement in place.
“[A]Among other words, the EEOC would investigate allegations of harassment and the DFEH would investigate allegations of discrimination, such as demands for pay and promotion, ”an EEOC lawyer told a California federal judge. “In this agreement, DFEH has expressly accepted not to investigate allegations of harassment.
While interagency agreements are not uncommon, a secret deal between the federal government and California in the midst of the Trump years, when the EEOC was on fire for pulling out civil rights cases, is certainly notable. While the DFEH may not be as famous as its federal counterpart, it is an agency that is becoming more and more aggressive. For example, it is the DFEH which is currently pursuing an injunction against Disney for alleged harassment on the set of Criminal minds. And it was the DFEH that recently made noise in a private class action lawsuit against Riot Games for gender discrimination in that company. As part of that effort, a lawyer representing employees described the interference in the settlement talks.
The EEOC and DFEH may have made a deal between themselves to divide the work on civil rights, but it appears the two agencies have sued Activision after receiving complaints. According to Rosa Viramontes, head of the EEOC Los Angeles branch, she phoned DFEH executive director Kevin Kish in 2018 and the two agreed to conduct a joint investigation, with the EEOC taking the lead. on harassment and the DFEH focusing on wage claims. .
According to the EEOC, it had completed its three-year investigation on June 15 and was ready to be resolved. Authorities said they invited the California agency to participate. Instead, without a response or warning, the DFEH filed its explosive case the following month. And the complaint included allegations of harassment.
Well, one thing not known to the public so far is that at some point during Activision’s investigation, two of the EEOC’s lead lawyers in charge of the investigation left the agency and joined. the DFEH, holding managerial positions.
What prompted them to change careers? Was there something going on at the EEOC that upset them? It’s not clear. Even the names of the lawyers are redacted in the court file. But whatever their motives, it seems they continued to work on the Activision case and contributed to the DFEH strike on July 20 against the video game giant. Subsequently, Viramontes complained to Kish about a “surprise” lawsuit that was “contrary” to the interagency work-sharing agreement.
On September 27, more than two months after the California DFEH threw its legal grenade on Activision, the federal EEOC took its own initiative: a proposed $ 18 million settlement with Activision.
Now, quite unbelievably, the DFEH is seeking to intervene to Stop the rule.
In court documents on Oct. 6, DFEH attorneys shared an article titled “Union suggests $ 18 million Activision Blizzard settlement like pennies” and challenged aspects of the EEOC’s proposed deal, ranging from a release of claims to how non-distribution funds would be returned to Activision.
“This habitual and brutal attempt to extinguish more protective state claims covered by an ongoing state enforcement measure, through a federal consent decree, is unprecedented,” complained Christian Schreiber. , an external lawyer representing the DFEH.
And that’s not all. The DFEH accused the federal agency of reaching an agreement ensuring that Activision destroy evidence.
” It’s necessary [Activision] falsify the evidence concerning harassment complaints in the personnel files of employees, and permanently change the dismissals into voluntary resignations to the serious detriment of the action of the DFEH ”, continues a request for intervention.
It didn’t take long for the EEOC to respond – and the agency is doing so forcefully.
In its midnight brief, the federal government points to the defection of two of its lead investigators in the Activision case, claiming that the DFEH’s action is tainted with professional misconduct, particularly rules that guide what lawyers for the government can do after leaving one agency for another. The EEOC argues that it is an inadmissible conflict to help direct an investigation to one agency and then later oppose the resolution of that same investigation on behalf of a different agency.
“[T]the appropriate remedy to remedy the breach of [California] To reign [of Professional Conduct] 1.11 in this case is to reject the request for intervention of DFEH and to prohibit the lawyer of DFEH from providing other work products or advice to the current lawyer ”, declares an opposition to the intervention.
If a judge does not accept this argument, the EEOC also submits a second memorandum which defends the settlement on the merits. The federal agency says Activision employees have a choice when it comes to raising a portion of the $ 18 million (“that’s an optionin Decree, not an opt-outside Decree ”), that the regulations will not include any arbitration, confidentiality, non-denigration or non-rehiring provisions, and that employees will be specifically informed of the DFEH lawsuit. “Given these guarantees, the DFEH cannot express any genuine interest that it seeks to protect,” argues EEOC lead counsel Taylor Markey.
One more thing.
The EEOC reports how the DFEH advised Activision employees not to hire private lawyers. (“This is not necessary and can be misleading or confusing,” the DFEH wrote in an email. “Please let us know if a lawyer is attempting to solicit your company for this matter.”)
“This conduct is at odds with federal and state laws, under which aggrieved persons have an absolute right to their own counsel with respect to government anti-discrimination law enforcement actions such as this one,” Markey told the judge. “A lawyer who advises people that it is against their interests to seek advice is also against the rules of professional liability. … Ultimately, the real purpose of DFEH here is to force individuals to recover only through trial.
The DFEH has yet to respond to the opportunity to comment, although it will respond in court soon.