Creator of World of Warcraft & Call of Duty SUED for Discrimination and Harassment | Lawyer Explains
TRANSCRIPT:
Hi there my name is Leeja I'm a real life lawyer on a mission to demystify the law and how it affects your everyday life. Today we're gonna talk about the Activision Blizzard sexual harassment lawsuit. That's right it's a lawsuit taking the gaming world by storm in which the state of California alleges that Activision Blizzard, the company behind such games as World of Warcraft has a pervasive frat boy culture. We're going to talk about that lawsuit today!
First let me tell you that I'm a lawyer but I'm not your lawyer and nothing that I say should be construed as legal advice. You should always seek the advice of a licensed attorney before making any legal decisions.
Okay, so this lawsuit was just filed on July, 20 2021, and it is brought by the state of California, or more specifically an agency within the state of California, the Department of Fair Employment and Housing against Activision Blizzard and its subsidiaries, Blizzard Entertainment and Activision Publishing. Activision Blizzard (which I'm just going to refer to as Blizzard throughout this video because there's way too many syllables) Blizzard and its subsidiaries own games like Call of Duty, World of Warcraft, Candy Crush, like the biggest games you can think of, probably owned by Blizzard, or its subsidiaries. Diablo. Overwatch. Like, I'm not a gamer, by any means but like I even know these names.
That's not entirely true like I have spent many, many years of my life building dream mansions in the Sims. So you can call me a gamer if you want to.
Okay, so if we look at this complaint, let me pull it up here. Alright, so it's between the Department of Fair Employment and Housing, an agency in the state of California, and they are suing Activision Blizzard Inc. Blizzard Entertainment Inc and Activision Publishing Inc and Does one through 10 inclusive. This is used by attorneys in a complaint when they know there are specific people that allegedly did the things that they're claiming in the complaint, but they don't know exactly who it is, and they need discovery (which is the period after the complaint, when all the fact investigation unfolds) they need that time to figure out who exactly they need to name and sue as part of this lawsuit. But they're claiming that there are people, employees, agents of Blizzard and its subsidiaries that acted and perpetrated the abuse that is alleged in the complaint, they don't know who it is yet so they do Does one through 10 inclusive, and then later in the complaint say it'll be named during discovery, we'll figure out who these Does are will actually named them later on.
This lawsuit alleges employment discrimination under the FEHA, the Fair Employment and Housing Act of California. Specifically they are alleging sex discrimination, sexual harassment, retaliation, unequal pay and failure to prevent sexual harassment and sex discrimination. So the California Department of Fair Employment and Housing is suing, as an agency, Blizzard, and on behalf of the people who allege that the abuse happened to them while they were employed in Blizzard. They're part of the government of the state of California and they're able to sue under the law, the FEHA, to enforce the public good basically and on behalf of these employees.
Alright so, the facts are pretty awful. I mean, obviously content warning: sexual harassment and assault, etc. In this. But basically the complaint alleges that there is a frat boy culture within Blizzard that was perpetuated from the top down, that included things like “cube crawls,” where men would get drunk and literally crawl from cube to cube and women would regularly get like groped during these events. And just general, you know, joking about r*pe and condoning of assault and harassment at pretty much all levels of the company. The complaint also alleges that women were overlooked for promotions, were paid on equally to men doing the same work, and women of color were even more vulnerable. According to the complaint, a couple of women claimed that they were being micromanaged while their male counterparts were, like, playing video games. One woman even claimed that her manager required her to write out like a one page paper describing what she was going to do with her time off after she asked for like a couple days off, and no one else had ever had to do that. The complaint also described a culture of sexual harassment and specifically names a couple of people including Senior Creative Director at World of Warcraft whose name is Alex Afrasiabi. He was so known to be a predator that his office was called The Cosby suite. At least I think that's what they mean. The complaint says “The Crosby suite. After alleged rapist, Bill Crosby.” And I assume they mean Cosby. And that's not the only time that's happened like there are there are headlines that misspelled Bill Cosby's last name, which seems impossible given that he's been in the spotlight for like 40 years. But anyway, yeah. The Cosby suite, horrifying.
And the complaint also alleges that one woman, committed suicide while she was on a company trip, due in part to the sexual harassment that she faced at the company, which included allegedly that at one Christmas party nude photos of her were just passed around by the men in the company. So… that’s bad.
I will link the complaint, down below so if you want to read through everything, please feel free, it's only 29 pages.
And then the complaint goes on to allege that after numerous reports to HR, nothing happened, Blizzard did nothing to remediate the issue. The complaint also notes that Blizzard’s own internal investigation found that HR was not held in high regard and that there was a big trust issue with HR internally. Like that's what their internal, Blizzard internal investigation found. Yikes. And the complaint alleges that a lot of HR personnel were close to the people who are perpetuating the abuse, and that as a result of reporting the harassment, some women were subject to retaliation, including getting passed over for promotions, getting transferred unwillingly to different positions, or being chosen to be laid off.
So that's the basic background of the facts in this case: there's been a lot of sexual harassment, California is suing on behalf of the employees at this large company.
California is suing under the FEHA and not Title VII. The FEHA is a California specific law, Title VII is a federal law. I talked more about Title VII in my bon appetit video, but according to the complaint, the FEHA actually provides greater protections for employees than Title VII does. In my video on bon appetit I talked about how Title VII employees very rarely actually win lawsuits under Title VII, whereas the FEHA was written to have greater protections for employees in the state of California, which is why they're suing under the FEHA, because in their mind then they'll be more likely to get some sort of remedy.
But what's most wild to me, what I'm not seeing reported in the news much, is that this lawsuit is the culmination of two years of administrative proceedings that happened before this complaint was filed, like the news is describing this as this explosive shock to the sys—like the company knew. The company has known for years that it was under investigation.
Okay so then this requires a little bit of background into what's known as administrative law. There's a whole class you can take on administrative law in law school. I think then there's like a more advanced administrative law class like admin law 2, you can take, because it's just that confusing. I took it, so I have a tenuous grasp on what admin law is, so we'll, we'll just keep it basic, but it's important to know and it's something that I don't think many people know about.
Okay, so there are agencies that state and federal governments create to enforce laws, so the Department of Fair Housing and Employment in California is an agency, an administrative body. They were created by the FEHA, the Fair Employment and Housing Act. Usually that's how administrative bodies are created, you have an act that is creating some sort of law that Congress writes, and then in that Act Congress writes to enforce these laws: “we will create the Department of Fair Housing and Employment, they will have the right to sue on behalf of the public good and people who are hurt under this law to enforce the law.” Or “they will have the right to enforce this law in X way.” And then that creates an agency. So this means that the Department of Fair Housing and Employment can sue under the FEHA, because it's written into the law, it's what Congress, or the California Legislature, intended.
However, usually with administrative law there are administrative proceedings that happen within the agency or the department, before it ever becomes a full blown lawsuit in state or federal court. This is basically to see if they can remedy the issue before gumming up the state or federal court system. This often involves an administrative hearing followed by some sort of investigation and then a final determination by an administrative law judge. That determination can be appealed for review by the person who doesn't like the outcome of the determination, which again is usually handled within the administration itself or within the agency. And then eventually, if there's no resolution that can be reached within the agency or the department, it will then become (sometimes) a lawsuit in state or federal court.
And they call administrative law the fourth branch of government. So you know we have three branches of government: judiciary, the Congress, and the presidency. They call administrative law the fourth branch, the invisible branch, because so much law happens at the administrative level, so many laws are enforced at the agency, department, administrative law level. It's a joke that it's considered the fourth branch of government, and it's one that we don't really talk about you don't really know that much about because it's complicated and each agency and department has its own rules and it's just layers and layers of regulations. But this is how a lot of laws and regulations are enforced through agencies and departments, either at the state or federal level.
Probably an example that most people usually experienced at some point in their lives or have family members who have that falls under the administrative law umbrella would be benefits determinations like whether you get unemployment benefits or Social Security benefits. The Social Security Administration was created to enforce social security laws, and therefore makes determinations about Social Security benefits. So they can give you your benefits and they can take your benefits away, but they do have to give you a due process to do such a thing, but that they do have the power to do that. And then usually it can be appealed. But it's within their purview, and this obviously affects large swaths of the United States population, hence the fourth branch of government line.
Okay, so that's just really basic background of administrative law: it’s these separate agencies created by Congress enforcing laws, written by Congress, within themselves before anything ever goes to court. So, this issue started back in 2018, when the head of the Department of Fair Housing and Employment filed a complaint within that department, against Blizzard and the alleged sexual assault that had been happening. Usually when a complaint like this is filed within an agency, it's because they have received complaints from employees. So the head of this department got enough complaints from people that he decided that it would be in the public's best interest to file a formal complaint within the department against Blizzard, and like, I'm pretty sure these agencies get quite a few complaints so the fact that he got enough to warrant going forward with a formal investigation tells me that it was probably happening for a lot longer before 2018, and there was a lot of lead up to that 2018 complaint that was filed with the Department, which triggered an investigation which found that there was sexual discrimination and harassment against the FEHA happening at Blizzard. And then they tried to resolve this issue with Blizzard, through an internal mediation process within the agency. Again this is all according to allegedly according to the complaint. And of course the complaint and the investigation took a long time so when the mediation process fell apart this summer, that's when the complaint was filed, because getting a formal court order from a state is going to be weightier than being told what to do by an administrative law judge.
So, these issues are not new, by any means, they are years old, and they're just more public now, because of this lawsuit.
Alright, so there are 10 causes of action listed on in this complaint. A cause of action is just a separate claim basically that someone is making against someone else under the law. And those causes of action are: discrimination in compensation, discrimination in promotion, discrimination in termination, constructive discharge, which is a disgusting phrase, which basically means that the person wasn't fired but the company made the circumstances of their employment so unbearable that it forced them to quit. Harassment, retaliation, failure to prevent discrimination and harassment. And there are two counts of that, one on behalf of the department and the public good and the other on behalf of the actual employees as a group. Unequal pay, which was a separate count in addition to discrimination in compensation because there's a different law that also prohibits unequal pay, so they're suing under both. And then the 10th count is waiver of rights forms or procedures and release of claims, which is part of the Fair Housing and Employment Act that makes it illegal to force an employee to waive their rights to protections under the FEHA. Basically the argument is that if they forced employees to endure sexual harassment, then as a condition of their employment, they had to waive their rights not to be harassed or discriminated against in order to be employees. Does that make sense? Basically, they took everything they could find, they through the book at them. And this is a smart strategy because you want to include as many counts as possible. So if they're able to argue with the court like hey these counts shouldn't be brought against us for X y&z reason there'll still be all these other counts against them so you'll still get that remedy.
And the remedy that they've asked for isL compensatory damages, punitive damages, declaratory relief (basically saying that Blizzard is wrong), injunctive relief (telling Blizzard to stop doing what they're doing), and attorneys fees as well as back pay, lost wages, and benefits. They're asking for everything and the kitchen sink. Which is again a smart strategy because the judge might determine that some of that is warranted and some isn't, so you’ve got to ask for all of it, and then it's going to be up to the judge to determine what is warranted in this situation.
Okay so after this lawsuit was filed, Blizzard responded with a statement that the department had filed a rushed, inaccurate report with “distorted and in many cases false descriptions of Blizzard’s past.” And then the President of Corporate Affairs Frances Townsend sent out this email, allegedly reported by the news, basically saying again that like the whole, the whole investigation that the department did distorted the facts, and that like it was outdated, some from even a month ago. Which was wild like “well this all this all happened a month ago!” Like this all happened a month ago so we should… water under the bridge? I don't know, Blizzard’s employees were pissed, 2000 of them signed an open letter to the company basically demanding that they do better, and like 350 of them staged a walkout.
After the employees had such a bad reaction Blizzard has kind of walked back that sentiment and is now saying that they want to create a compassionate work environment and that they're going to do their best to right past wrongs. And the CEO announced that a private law firm WilmerHale will be stepping in to do a private separate investigation of the company. That, again, a lot of employees had a problem with because of the connections that WilmerHale already had with Blizzard, and because of some past work that WilmerHale’s attorneys had done that was like anti union for I think both Amazon and Uber, and other complaints. Which like, I don't think you're gonna find a big law firm that exists that hasn't done work in the past that was like anti labor, anti union. Big law firms are hired by companies to protect companies, like individuals aren't hiring big law firms, that's not how it works. It's like one of the main reasons I didn't go into employment law was because I knew I was going to a big law firm and I knew I didn't want to be on that side. And then I quit that big law firm so joke's on me I guess, the video about it up here somewhere. Anyway, you're not going to find a big law firm that doesn't have something objectionable that they haven’t done in the past period. Because that's where the money is.
Now on Tuesday, August 3 It was announced that J. Allen Brack the president of Blizzard Entertainment stepped down. He'd been with the company since 2006 and before his position as president, he worked as the executive producer of World of Warcraft, and the lawsuit alleges that he knew of the harassment and didn't do anything.
And then on top of all of this, a second lawsuit has been filed against Blizzard, this time by a number of its shareholders. It's a class action lawsuit claiming that they misrepresented the health and well being of the company to shareholders, at shareholders detriment. They're alleging a violation of securities laws that require that companies disclose that they're being internally investigated. Specifically the Sox certifications, I've never heard of this. Sox stands for Sarbanes-Oxley Act of 2002, which was passed to protect the public from erroneous and fraudulent activities by publicly traded companies. Companies have to release a Sox certification every year signed by the executives disclosing any potential legal issues or investigations happening that could affect the value of the business. And this did affect the value of the business I think the stock value went down by like 10% or something.
So this new lawsuit alleges that they failed to inform investors of this investigation in violation of this act, and that shareholders were hurt as a result. Which kind of sounds like they might have a pretty strong case because, as a business if you have shareholders, you have a duty to those shareholders to disclose things about the business. There are public filings like the Sox filings, or certifications, that are required of businesses because they're not allowed to mislead shareholders. That is, that's bad that's like Wolf of Wallstreet shit you can't do that, that's against the law. And that's, allegedly, what this company did. None of their sock certifications listed this investigation that, like I said, had been going on since 2018, in any of these certifications. So again, this lawsuit, not a shock, not a shock to Blizzard at all. A shock to many people, certainly, but not the company, they knew it was coming. It's like the logical next step when you don't cooperate in an administrative investigation and then mediation. Yeah, they knew it was coming.
The next step is for the lawyers for Blizzard to respond to the complaint either by claiming that it should be dismissed because of a number of deficiencies, or they could then walk back everything and decide to actually cooperate with the administrative proceedings and mediation in exchange for a settlement and then maybe they can get the whole thing to go away. Who knows, it's all very fresh at this point. So now we wait and see kind of what Blizzard does, but so far it's been a real PR nightmare for them, one can say.
Anyway, that's the story, folks. You'll notice that I said alleged and allegedly a lot in this video. I've gotten a few weird passive aggressive comments from people being like “lawyers are hiding behind the word allegedly all the time because they don't want to have to answer for the things they say.” Yeah, that's the literal point of the word alleged allegations, comes from the same… Everything that was alleged in the complaint is at this point allegations they have not been proven in a court of law. And if you go around saying defamatory things about a company or a person that you don't know whether they're true or not, you could be liable for a lawsuit, a defamation lawsuit. I'm not interested in that, we don't know if this is true yet because a court hasn't determined it to be so, so I'm saying allegedly because I don't want to be slapped with a lawsuit. So yeah, I am hiding behind the term allegedly and you would be smart to do so as well, so get the hell out of my comments section. I’m worked up. Tune in next week for my video where I react to mean comments because, man, they're getting old.
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Transcribed by https://otter.ai
