Activision’s Great Deal

Activision Blizzard, Inc., the publisher of popular video games, allegedly tolerated a “frat boy” culture for years.

California’s Dept. of Fair Employment and Housing (DFEH) filed a lawsuit in 2021 alleging Activision executives knew about and failed to stop pervasive sexual harassment and then retaliated against women who complained.

But that lawsuit was effectively blitzed by an $18 million settlement approved this week by U.S. District Judge Dale S. Fischer.

The settlement between Activision and the Equal Employment Opportunity Commission (EEOC) requires Activision to pay $18 million and to hire a neutral equal opportunity consultant.

Activision, a Santa Monica company that publishes games like Call of Duty and World of Warcraft, earned about $8.8 billion dollars in 2021. It is ranked #373 on the Fortune 1000 Revenue Rank. The settlement amount, $18 million, is approximately 0.02 percent of the company’s annual earnings.

An $18 million settlement is a mere nuisance to the biggest producer of video games in the world. It is the proverbial slap on the wrist.

For example, a Los Angeles County jury assessed a $58.2 million verdict against entertainment executive Alki David of Hologram USA, Inc. for a sexual abuse of a female production assistant in 2019.

Judge Fischer said any claimant to the EEOC settlement must waive their right to pursue the DFEH lawsuit. So, it’s a bird in the hand kind of thing. Take the money now or take a chance (however small) of getting a higher amount in the future.

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Now Start Disclosing Records Of Employer Misconduct

A federal appeals court panel this week approved publicly disclosing records of unsubstantiated misconduct complaints lodged against law enforcement authorities in New York City.

Now let’s extend that rule to employers.

The U.S. Equal Employment Opportunity Commission (EEOC) has long refused to disclose any details with respect to discrimination complaints filed against employers. The EEOC even hides from public view its decisions adjudicating those complaints. Many complaints in which the EEOC found probable cause the employer engaged in discrimination are quietly settled pursuant to mediation or conciliation agreements. No one is ever the wiser.

The EEOC’s secrecy rule permits discriminatory employers to avoid accountability for violating laws that ban discrimination based on age, race, sex, disability, religion, color, national origin, etc. Some nefarious corporations undoubtedly make it a cost of doing business to pay off discrimination victims.

If the public has a right to know when a police officer or firefighter is charged with misconduct, there is no justification for permitting employers who are charged with violating civil rights laws to hide behind confidentiality laws. At the other end of the spectrum, courts should stop the practice of sealing out-of-court discrimination settlements from public view.

Courts should stop sealing from the public view out-of-court settlements in discrimination cases.

Prospective job applicants have a right to make informed decisions about whether to take a job with a prospective employer that discriminates based on race or age. Members of the general public should be allowed to patronize only employers that treat their workers well.

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Federal Judge Links Hostile Workplace And Retaliation

A federal judge has upheld a claim by accountant of Indian origin that he was subjected to a hostile workplace in retaliation for filing discrimination complaints against the U.S. Department of Health and Human Services (HHS).

U.S. District Judge Theodore D. Chuang of Maryland said a hostile work environment exists under Title VII of the Civil Rights Act of 1964 when the workplace is permeated with “discriminatory intimidation, ridicule, and insult” that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment.

He said some of the harassment suffered by accountant Samba Vedula, who joined HHS in 2010, was not particularly severe and/or involved management discretion but “several of the verbal confrontations were insulting and humiliating, and the pervasiveness of these actions was so pronounced” that a jury could find the existence of a hostile workplace environment.

Judge Chuang said Vedula failed to show the harassment was directed at his national origin and sex but did produce sufficient evidence to show the harassment was the result of retaliation for filing complaints about the harassment with the HHS.

The adverse actions taken by HHS supervisors after Vedula’s complaints “constitute materially adverse actions for purposes of the retaliation claim because they would have ‘dissuade[d] a reasonable worker from making or supporting a charge of discrimination,'” writes Judge Chaung.

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A Primer On How Employers Can Exempt Themselves From Civil Rights Laws

What are the chances employers will hire job applicants who opt-out of a “voluntary” clause that requires them to forgo their right to file a lawsuit if they are subject to future civil rights violations?

Lori Burchett thought the odds were not good when she applied to work as a “My Stylist” at a Macy’s Inc. store at Oak Brook Center in Illinois in 2017.  In any case, she didn’t want to gamble. She needed a job.

Burchett, then 58, agreed to something that was clearly not in her best interests, a clause requiring her to submit to arbitration any future claims of employment discrimination based on age, gender and race.

In the following months, Burchett alleges she encountered gross age discrimination from managers and coworkers that led to her termination by Macy’s in 2018.  

U.S. District Judge Sharon Johnson Coleman earlier this month dismissed Burchett’s age discrimination lawsuit and granted Macy’s motion to compel arbitration in the case.

Judge Coleman notes that Burchett, who represented herself, “contends that Macy’s would not have hired her if she did not sign the arbitration agreement.”

But Judge Coleman said Macy’s legal team provided “painstakingly detailed evidence and averments” that Burchett was informed in advance of hire that she could opt-out of the  arbitration clause.

“Without proof to the contrary, courts will not presume that arbitration is unfair or biased, especially in light of federal policy favoring arbitration,” ruled Judge Coleman.

Apparently, Burchett’s “averments” did not constitute evidence or proof to the contrary.

The implications of Judge Coleman’s ruling is that employers can easily exempt themselves from being sued in federal courts for future violations of U.S. civil rights laws simply by asking job applicants to sign a “voluntary” arbitration clause in an employment agreement.

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Weakening Of Good Ole’ Boy’ Network?

Prior to the #MeToo movement, which raised consciousness about the problem of sexual harassment by powerful men, this case might have ended differently.

A three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia recently upheld a lower court’s refusal to dismiss sexual harassment lawsuit filed by Probation Officer Crystal Starnes against Butler County Court of Common Pleas and two individually named defendants, Thomas Doerr, the presiding judge of the court, and Thomas Holman, the Deputy Court Administrator.

Perhaps most significantly, the panel rejected Doerr’s claim of qualified immunity to the sexual harassment charge, meaning he can be held personally liable for what Starnes alleged were years of severe and pervasive sexual harassment.

Doerr argued he was immune because the 3rd Circuit had not previously recognized hostile work environment claims under Section 1983 of the Civil Rights Act, which permits state employees to bring civil rights complaints under the Equal Protection Clause of the U.S. Constitution. The panel disagreed, pointing to a “robust consensus of persuasive authority” that such claims are actionable under the section.

The panel refused to dismiss Starnes’ lawsuit, finding she alleged sufficient facts to support a “plausible” claim of “severe and pervasive” sexual harassment.

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