Activision Fights Uphill to Toss Calif. Agency's 'Frat Boy' Suit

A California judge has tentatively rejected most of Activision Blizzard's bid to toss a suit by the state's Department of Fair Employment and Housing accusing the video game maker of fostering a sexist, "frat boy" workplace.

In the tentative ruling and hearing in a Los Angeles courtroom where counsel for Activision appeared in person and counsel for the DFEH appeared via video, Superior Court Judge Timothy Patrick Dillon outlined a plan to reject all but one of the company's 11 arguments.

Activision filed a demurrer to all causes of action in the complaint on the grounds that it covers an unspecified time period. The company also raised specific objections to other causes of action and sought to toss all claims being brought on behalf of contingent and temporary workers while arguing the state agency overstepped its bounds in filing claims that went beyond actual employees of the company.

Elena R. Baca of Paul Hastings LLP, who represents Activision, argued during the hearing that the DFEH violated due process by submitting an amended complaint that sought to cover not just employees of Activision, but also temp workers, even though its administrative complaint, original complaint and the focus of its investigation did not cover those types of workers.

"Your honor, the DFEH's powers are defined and constrained by the California government code," she said. "As a government actor and a government litigant, notice and due process are not mere technicalities. They are fundamental obligations of the government."

She added that the government "overstepped" California Government Code 12960(c), which "require[s] the DFEH, at the outset, when it's going to conduct an investigation ... the government code needs to state the person, the employees, and set forth reasonable, particular thereof, including who are the groups or classes that's being investigated."

But the judge appeared likely to reject that argument.

Echoing his tentative ruling issued before the hearing, the judge told Activision that he thinks the California Code Regulations, Title 2, Section 11008(c) "provides that when temporary employees are under the control of the employer they are considered employees. And these employees would be in the defendant's offices and under the control of the defendants for several purposes. And that's why I don't think you need the temporary agencies here as defendants because what we're dealing with is what happens inside of the offices."

The judge's tentative decision said the DFEH could amend the claim to address its potential deficiencies.

The DFEH filed a suit against Activision Blizzard in July accusing the company of having a sexist, "frat boy" workplace culture in which women are not only paid less but also constantly harassed.

The suit alleges that women who work for Activision Blizzard — which is behind a slew of popular games including Call of Duty and World of Warcraft — are subjected to "constant sexual harassment" that includes groping, inappropriate comments and advances. All the while, Activision Blizzard's top executives and its human resources personnel have known about the harassment, failed to prevent it and retaliated against women who complained, according to the suit.

Since the suit was filed, the DFEH has gotten into a bit of a legal turf war with the U.S. Equal Employment Opportunity Commission, as the DFEH worked in federal court to block an $18 million settlement the EEOC reached with Activision Blizzard in a separate federal case.

The squabble led to the EEOC claiming in the federal case in October that the DFEH should not be allowed to fight the $18M settlement because the state's legal team until recently included two conflicted former EEOC lawyers.

Activision then tried to use the alleged ethics violation to call for a stay in the DFEH's case, although it was denied in October.

The one part of Judge Dillon's tentative ruling that went against the DFEH on Tuesday was on a cause of action for employment discrimination because of sex — termination. The judge sustained the demurrer on that claim and said that the state did not adequately allege that any employee whose job performance was satisfactory was terminated and replaced by workers of comparable qualifications not in the protected class.

Melanie Proctor, who represents the DFEH in-house, told the judge that the agency plans to amend its suit to include additional facts and address his comments.

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