U.S. Equal Employment Opportunity Commission v. Activision Blizzard, Inc.

By Brianna Rodriguez, GW Law, 3L

On July 20, 2021, California’s Department of Fair Employment and Housing (DFEH) filed a complaint against Activision Blizzard in California Superior Court. Activision Blizzard is a highly successful leading video game developer with well-known games such as World of Warcraft, Call of Duty, and Overwatch. Its headquarters is in California.

The complaint alleges violation of California Gov. Code §12930, “the right and opportunity of all persons to seek, obtain, and hold employment without discrimination.” The complaint lists ten causes of actions regarding (1) sexual discrimination (2) sexual harassment and (3) retaliation and failure to prevent discrimination, harassment, and retaliation.

Sexual Discrimination

The DFEH claimed that Activision Blizzard discriminated on the basis of sex in pay, assignment, promotion, termination, and constructive discharge. Women were hired for lower level and less lucrative jobs, with fewer to no opportunities for growth within the company. Even when a female employee had “highly rated performance reviews, (2) [g]enerated significantly more revenue in her marketing campaigns than her male counterpart; and (3) [r]an almost twice as many campaigns as her male counterpart,” male co-workers would be promoted over the successful female employee. Moreover, supervisors refused to offer promotions to female employees who had the potential to become pregnant yet were not actually pregnant.

For pregnant employees, they received negative performance reviews that took no note of the medical restrictions of pregnancy. Female employees who had children received criticism for their parenting duties. Employees who were using the company’s lactation room would be kicked out by their male counterparts with the claim that they needed the room for a meeting.

In particular, women of color were targeted by their supervisors. For example, “an African American employee noted that it took her two years to be made into a permanent employee while men hired after her were made permanent employees,” [emphasis added]. That employee also noted micromanagement from her supervisor, while her male co-workers were playing video games, unbothered by the same supervisor. Male co-workers often delegated their work responsibilities to their female co-workers to play video games during work, without any supervisor intervention.

Female employees were also given less stock in the company and had fewer incentive compensation opportunities. Female employees were fired more quickly. Even when female employees were not fired, they were constructively terminated, as they were forced to leave due to the company’s discriminatory practices, such as those mentioned above.

Sexual Harassment

Female employees described the Activision Blizzard company environment as a “frat house.” Male co-workers would make derogatory comments on rape and women’s bodies. Male co-workers of one female employee made comments about her breasts. Supervisors added onto the demeaning commentary, with one supervisor commenting to a subordinate that the subordinate should “buy a prostitute” to lift his spirits.

Alex Afrasiabi, the former Senior Creative Director of World of Warcraft at Activision Blizzard, was known by female employees to sexually harass female employees. Despite complaints, Afrasiabi received no repercussions.

In one tragic example of a female employee experiencing sexual harassment by a male supervisor, one female employee ended her own life due to the sexual harassment she suffered. In this case, the male supervisor shared compromising photos of the female employee to other male employees in the company.

Retaliation and Defendant’s Failure to Prevent Discrimination, Harassment, Retaliation

People with power in the company knew about the sexual discrimination and sexual harassment at the company. Female employees spoke about these issues to the Human department and even to the company President. However, no action was taken. People in power at Activision Blizzard allegedly allowed the continuation of this “pattern and practice” of sexual harassment and discrimination.

EEOC’s Involvement

Following the DFEH complaint, the U.S. Equal Employment Opportunity Commission filed a claim against Activision Blizzard in the Central District of California for a violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employment discrimination based on race, religion, national origin, skin color, and sex. Here, the EEOC claimed that Activision Blizzard violated Title VII based on sexual harassment, pregnancy discrimination, and retaliation.

The Settlement

On March 29, 2022, The Honorable Dale S. Fischer, United States District Judge for the Central District of California, approved a consent decree between the EEOC and Activision Blizzard in the amount of $18 billion. A consent decree is a court order that contains terms to a settlement agreement that all parties agree to as a compromise to litigation. In a consent decree, all claims against the defendant are released and resolved. A consent decree does not show admission of fault to the plaintiff’s claims.

Under this consent decree, there is a settlement fund for claimants, in which the defendants provide the funds, the $18 billion. Any current and former female employees of Activision Blizzard who meet the requirements and file a claim within 120 days of the Notice of Settlement will receive a portion of the settlement fund as compensation. The consent decree does not specify the monetary amount each claimant will receive.

A claimant must show (1) they were an employee of Activision Blizzard  from September 1, 2016, to the effective date; (2) based on the EEOC’s assessment, the claimant could assert a viable claim for sexual harassment, pregnancy discrimination, or related retaliation by Activision Blizzard; and (3) that the claimant experienced a harm.

The consent decree also demands that Activision Blizzard not engage in any discriminatory practices. Activision Blizzard must also hire a third-party consultant that is EEOC-approved to confirm that the company is providing anti-discrimination training and is not engaging in any discriminatory practices.

What about the DFEH Claim?

California’s DFEH asked permission from the Central District Court of California to file a motion to intervene. The DFEH wanted to intervene because they claimed that the consent decree will release Activision Blizzard from claims made in California state law as well as destroy evidence paramount to DFEH’s claims, which the EEOC has no standing to do. The judge denied permission to file a motion to intervene. The lawsuit between DFEH and Activision Blizzard is ongoing.

What is the future of Activision Blizzard?

When the EEOC lawsuit was ongoing, Activision Blizzard employees and shareholders demanded that CEO of Activision Blizzard Bobby Kotick resign for the abhorrent inaction following the complaints of harassment and discrimination. Bobby Kotick is still the CEO of Activision Blizzard.

Following the consent decree, Activision Blizzard CEO Bobby Kotick published a press release listing actions that the company has taken to “focus on eliminating harassment and discrimination from [their] workplace.” Actions include an increase in their Ethics & Compliance team, increased anti-sexual harassment and anti-discrimination training, stricter alcohol policies, $1 million donation to the Women in Gaming International, and a new data tracking practice to track the “presence of women and underrepresented ethnic group candidates at applicant, interview, and hiring stages of [their employee] recruiting process.”

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