Historically, the Department of Fair Employment and Housing (DFEH) has been highly selective in pursuing its own lawsuits. In California, individuals must lodge their complaint with the agency before filing a lawsuit against their employer. Typically the DFEH immediately grants them this right and reviews complaints for potential investigation, but it seldom pursues the cases itself. In 2019, the agency received 22,584 total complaints and filed four of its own cases. It filed 29 in 2018, following 20,822 complaints. Settlements are far more common. The DFEH settled 710 cases in 2019, totaling $14.8 million.
In this instance, after two years of investigation into Activision Blizzard, the fact that the DFEH opted to take up the case indicates to some labor law experts that the case is likely a strong one for the plaintiffs.
“The DFEH would want to take on cases to set precedents, against particularly bad actors, if there are lot of complaints about the same employer, or to send a wake up call to the industry," said Clare Pastore, a law professor at USC Gould School of Law and member of the California Advisory Committee to the U.S. Civil Rights Commission. "They certainly don’t want to bring questionable cases and don’t want to spend resources on borderline cases. I would not expect this case to be thrown out early.”
In the wake of the suit being made public, Activision Blizzard issued a statement that claimed the DFEH’s charges are “distorted, and in many cases false, descriptions of Blizzard’s past” and that the company is an “equal opportunity employer” that has made changes in recent years.
The statement said the company cooperated with the DFEH during the investigation and further attacked DFEH and California state bureaucrats, by saying they are “driving many of the state’s best businesses out of California.”
Now, Activision Blizzard must either respond to the claims being brought against it within 30 days of being served or question a procedural aspect of the case, for example, challenging whether the County of Los Angeles is the proper venue for the case or one of the civil procedure codes that DFEH cited as its basis for bringing the case. Should a judge allow the case to proceed, this would be followed by the discovery process, when litigants share documents and information with each other and conduct depositions. The judge would then decide if the case is to proceed to the trial stage.
Attorneys for Activision Blizzard did not respond to The Post’s request for comment. Reflecting Pastore’s assessment, the director of DFEH, Kevin Kish, said his goal is to bring cases that impact as many people as possible.
“Our investigations and litigation have to be strategically targeted at remedying violations that effect as many people as we can reach," he said. “Our priority has to be on systemic violation of civil rights law, given the scope of what we have to do. We were given tools by the state legislature and we should be using them.”
Kish referred to the power to bring civil cases by the California State Legislature in 2013. This replaced the previous administrative adjudication system. Kish sees the Activision Blizzard case as indicative of what he referred to as the, “special role of government in certain types of cases.”
“The most common response to harassment is nothing,” he said. “There are other types of legal violations that individuals are extremely unlikely to detect on their own, including pay inequities. Government is uniquely positioned to come in and say, ‘We need to take a look at this.’ You should expect a competent government civil rights enforcer to be looking at these kinds of issues that are less likely to resolve by private litigation.”
Kish said if the DFEH and other civil rights-focused government agencies only responded to complaints, it would limit effective enforcement.
“Then you will miss all this stuff because people don’t complain about it,” he said, noting that DFEH tried to mediate and settle this case with Activision Blizzard prior to filing. Activision claimed in its statement the DFEH did not do so, though the court filing states the DFEH met with Activision Blizzard on July 1, 2 and 15 of this year with the department’s internal dispute resolution division.
Other recent DFEH actions have targeted computer technology company Oracle for enforcing an alleged “caste system” in its San Jose office. It has also taken action against the CBS TV show “Criminal Minds” for an alleged “unchecked hostile work environment,” retail outlet Forever 21 for an alleged English-only policy for employees, and a Silicon Valley venture capital firm for alleged sexual harassment.
This is the second instance of the DFEH engaging in action against a major video game publisher. The DFEH also became involved in the ongoing case against Los Angeles-based Riot Games. That case, in which Riot faces similar claims to those leveled at Activision Blizzard, was initially brought by private individuals. DFEH became involved after objecting to a proposed settlement of $10 million. The agency said that, following the logic of the plaintiffs, the figure could be as high as $400 million.
Dawn Knepper, an employment attorney who has advocated for both defendants and plaintiffs on employment law, said the Activision Blizzard case could be significant in further defining a recent California law on gender pay gaps. The California Equal Pay Act was written into state law in 2017, but it has not been definitively examined at the California appeals court level, leaving lawyers with a precedent to reference in such cases.
“There are not a significant number of cases based on that," Knepper said. “I’m personally excited for DFEH to take this up so that we perhaps can end up with more guidance and examples of when parties do litigate equal pay claims.”
Knepper herself filed a $300 million class action lawsuit against her former employer, a top labor law firm.
“I look forward to arguments of factors that led to the decision in compensation," she said. "I think this will get the attention of everyone on both sides of the bar.”
Knepper said she was surprised the case reached this stage, as opposed to being settled.
“These are very serious allegations,” she said. “I’m sure there were opportunities to reach a resolution, so it’s interesting to see it has become public.”