State won’t take back seat to EEOC in gaming industry suits

The state's fair employment agency lobbed another volley at the U.S. Equal Employment Opportunity Commission in the agencies' rift over who is best positioned to police the game creator industry that some employees have said is rife with sexism and discrimination.

In a motion filed Monday to intervene in the EEOC's proposed $18 million settlement with Activision Blizzard, lawyers for the Department of Fair Employment and Housing said it would not take a back seat to the federal agency in its attempt to investigate and prosecute workplace wrongdoing.

"The DFEH's hope is that each agency will continue to diligently enforce the specific laws it is authorized to enforce, while cooperating with each other to implement their statutory mandates," wrote Jahan C. Sagafi, a partner at Outten & Golden LLP which represents the state agency. "Despite the DFEH's dedicated efforts to protect these interests, the EEOC and Activision secretly negotiated a proposed consent decree without the DFEH's input and beyond the EEOC's statutory authority to pursue only federal claims, threatening to undermine the DFEH's enforcement of California law in the state action."

Victor Chen, a spokesman for the EEOC, said Tuesday the agency would not comment pending U.S. District Judge Dale S. Fischer's approval of the consent decree. U.S. EEOC v. Activision Blizzard, 21-cv-7682 (C.D. Cal., filed Sept. 27, 2021).

Relations between the federal and state agencies have turned increasingly sour in recent weeks, often turning lawyers for Activision Blizzard and Riot Games and for women suing the game creators into spectators. Lawyers for the game creators and for the women have both said they believe the state agency has become too political and is not making decisions in the best interest of actual victims. The state has said it is trying to bring systemic change to the industry and believes California law offers the best tools to do that.

Earlier this month, EEOC accused the state agency of having a conflict of interest because two of its lawyers formerly worked at the federal agency and participated in its investigation of the game creator industry. The state agency rejected those allegations but hired Outten & Golden to take over the motion to intervene in the federal case. The law firm already represented the agency in its own lawsuit against Activision Blizzard. DFEH v. Activision Blizzard, 21STCV26571 (L.A. Super. Ct., filed July 20, 2021).

The federal and state agencies began investigating Activision Blizzard in 2018, and for a time divided up duties. The state would handle promotions and pay claims while EEOC would focus on sexual harassment claims, they agreed. After EEOC reached its settlement with Activision Blizzard, the state agency officials said the deal was inadequate because it didn't force the company to turn over documents that might bolster a pattern and practice lawsuit. EEOC responded that it had authority to take the lead. In its filing Monday, state said the federal agency misread the agreement.

"The agencies coordinated only for purposes of sharing resources and information, consistent with Title VII and the worksharing agreement," Sagafi wrote. "The agreement did not delegate the DFEH's Fair Employment and Housing Act enforcement authority to the EEOC."

In 2019, the state agency successfully intervened as plaintiffs in a class action brought by several women against Riot Games Inc. On Tuesday, the class resumed settlement talks with Riot Games over the objection of the state.