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It exploded like an Mk 2 in Call of Duty: Multiple claims of sexual harassment at Activision Blizzard, one of the biggest game publishers in the industry. Male employees drinking copious amounts of alcohol and crawling through the cubicles where women worked. Pervasive joking about rape. The “Cosby Suite,” so named because one executive who worked there was particularly well known for his unwanted sexual advances. And the story of one female employee who died by suicide after colleagues passed around a nude picture.
When California’s 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 claims, among other allegations — the lawsuit made quite the noise. And there were ramifications too: The company’s stock price took a hit. Top executives quit. There was a renewed push for unionization at Activision. And elsewhere, a larger conversation erupted about whether the video game industry was truly ready for its reckoning with claims of sexual harassment and assault.
But there’s more to what happened — specifically, on the investigation end. A remarkable court battle is now developing between two government agencies tasked with addressing workplace inequity. Now, with talk of potential evidence destruction and accusations of professional misconduct, an all-out turf war is emerging between the federal and state agencies.
According to an Oct. 8 near-midnight filing by the U.S. Equal Employment Opportunity Commission (EEOC), the investigations into the Santa Monica-based maker of such hits as Call of Duty and World of Warcraft was triggered when an anonymous human resources employee made a complaint about a hostile workplace in early 2018. The government heard for the first time about what was happening to women who worked at Activision, but who would be responsible for ascertaining the truth? At the time, it’s now revealed, the EEOC and DFEH had a work-sharing agreement in place.
“[A]mong other terms, EEOC would investigate harassment allegations and that DFEH would investigate discrimination claims, such as pay and promotion claims,” an EEOC lawyer tells a California federal judge. “In this agreement, DFEH explicitly agreed not to investigate harassment claims.”
While interagency agreements aren’t uncommon, a secret deal between the feds and California during the heart of the Trump years, when the EEOC was taking fire for pulling back on civil rights cases, is certainly notable. While the DFEH may not be nearly as famous as its federal analog, it’s an agency that’s becoming more and more aggressive. For instance, it’s the DFEH currently pursuing an injunction against Disney over alleged harassment on the set of Criminal Minds. And it’s the DFEH recently making noise in a private class action against Riot Games over gender discrimination at that company. That effort had a lawyer representing female employees describing interference to settlement talks.
The EEOC and DFEH may have had a deal with each other to split civil rights work, but it appears that both agencies pursued Activision upon receiving complaints. According to Rosa Viramontes, chief of the EEOC’s Los Angeles branch, she got on the phone in 2018 with DFEH executive director Kevin Kish and the two agreed to pursue a joint investigation, with EEOC taking the lead in investigating harassment and DFEH focused on pay claims.
According to the EEOC, it had completed its three-year investigation by June 15 and was ready for resolution. The feds say they invited the California agency to participate. Instead, without reply nor notice, the DFEH filed its bombshell case the following month. And the complaint included harassment allegations.
Well, one thing not publicly known until now is that some time during the course of the Activision investigation, two of the EEOC’s lead attorneys on the probe left the agency and joined the DFEH, taking leadership positions there.
What caused them to make this career move? Was there something going on at the EEOC that upset them? That’s unclear. Even the attorney names are redacted in the court filing. But regardless of their motivations, it appears they continued working on the Activision case and contributed to the DFEH’s July 20 strike against the video game giant. Afterward, Viramontes complained to Kish about a “surprise” lawsuit that was “contrary” to the interagency work-sharing agreement.
On Sept. 27, more than two months after California’s DFEH launched its legal grenade at Activision, the federal EEOC made its own move: A proposed $18 million settlement with Activision.
Now, rather incredibly, the DFEH is seeking to intervene to stop the settlement.
In court papers on Oct. 6, DFEH attorneys shared a news article headlined, “Labor Union Suggests $18M Activision Blizzard Settlement Akin to Pennies,” and took issue with aspects of the EEOC’s proposed deal, ranging from a release of claims to how undistributed funds would be returned to Activision.
“This usual and heavy-handed attempt to extinguish more protective state claims covered by a pending state enforcement action, through a federal consent decree, is unprecedented,” complained Christian Schreiber, an outside attorney representing DFEH.
And that’s not all. The DFEH accused the federal agency of coming to a deal that ensures Activision will destroy evidence.
“It requires that [Activision] tamper with evidence regarding complaints of harassment in employee personnel files, and permanently change terminations to voluntary resignations to the severe detriment of the DFEH’s action,” continued a motion to intervene.
It hasn’t taken long for the EEOC to respond — and the agency does so forcefully.
In its midnight filing, the feds point to the defection of two of its lead investigators in the Activision case, saying the DFEH’s action is tainted by professional misconduct, specifically rules that guide what government lawyers may do after leaving one agency for another. The EEOC argues it’s an impermissible conflict to help direct an investigation at one agency, and then later oppose the resolution of that same investigation on behalf of a different agency.
“[T]he appropriate remedy to address the violation of [California] Rule [of Professional Conduct] 1.11 in this case is to disallow DFEH’s intervention motion and bar DFEH counsel from providing further work product or advice to current counsel,” states an opposition to the intervention.
If a judge doesn’t accept this argument, the EEOC also submits a second memorandum that defends the settlement on the merits. The federal agency says female employees at Activision have choices when it comes to collecting a portion of the $18 million (“this is an opt-in Decree, not an opt-out Decree”), that the settlement won’t include provisions for arbitration nor confidentiality nor non-disparagement nor no-rehiring, and that female employees will be specifically notified about the DFEH’s lawsuit. “Given these safeguards, DFEH cannot articulate any genuine interests which it is seeking to protect,” argues EEOC senior trial attorney Taylor Markey.
One more thing.
The EEOC flags how the DFEH has advised female employees at Activision not to retain any private lawyers. (“It is unnecessary and may be misleading or confusing,” wrote the DFEH in an email to them. “Please let us know if any attorney attempts to solicit your business for this case.”)
“This conduct is at odds with both state and federal law, under which aggrieved individuals have an absolute right to their own counsel related to governmental antidiscrimination enforcement actions such as this one,” Markey tells the judge. “An attorney providing advice to individuals that it is against their interest to seek counsel is also against the rules of professional responsibility. … Ultimately, DFEH’s true goal here is to force individuals to recover only through its lawsuit.”
The DFEH hasn’t responded yet to an opportunity to comment, although it will soon reply in court.
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