Wait, is Activision Blizzard Destroying Evidence Now?

Wait, is Activision Blizzard Destroying Evidence Now?

DFEH is intervening to stop the potential removal of sexual harassment and discrimination-related evidence by Activision Blizzard. Is it time for a boycott?
activision blizzard lawsuit protest
Crowds gather to protest sexual harassment and sex-based discrimination at Activision Blizzard. | © Polygon

A couple of months ago Activision Blizzard came under-fire, but not under-fire in the same way that their iterative Call of Duty games do each and every year. No, instead of an action-packed adventure, Activision Blizzard became the target of a massive sexual harassment and discrimination lawsuit. The findings and allegations were horrific, yet the company's sales look like they'll be better than ever when Call of Duty: Vanguard comes out early next month.

Honestly, as sickening as that is, it's hardly as sickening as what has been revealed over the last few weeks. The United States' own Equal Employment Opportunity Commission, hereon referred to as the EEOC, reached a settlement with Activision Blizzard within which is allowed the removal of evidence from personnel files. This evidence includes, and is specific to, the allegations of sexual harassment and discrimination that is ever-present within the lawsuit. Now, that sentence might have been a bit confusing, but what is not confusing is whether this is morally right or wrong. That much seems obvious to anyone who has a shred or dignity or respect for other human beings.

The State of California's Department of Fair Employment and Housing, whom I'll now refer to as DFEH, has now filed a motion to intervene with this settlement, but the thing is: how could this even have come about in the first place? The clause referred to within the settlement is so drastic, in fact, that the DFEH were forced to push through something called an ex parte motion. This basically waives the seven-day waiting period usually required before the department can intervene in such an agreement. Why? Well, because there is a fear that the clause will give Activision Blizzard the ability to actively scrub and sanitize the sexual harassment allegations at hand. It's scary stuff.

Things are looking increasingly bleak for the publisher, as these details add fuel to the fire that was set when the DFEH filed the lawsuit back in July. The original suit also contained allegations of document shredding, and Activision Blizzard's employment of WilmerHale – a company famous for its efforts to help Amazon more-or-less ban its employees from unionizing, but dive a bit deeper later – yet again reflects poorly upon the company. Honestly, consumer trust is at an all-time low at this point, and now that it's clear that Activision Blizzard's claims of full co-operation with DFEH (made to Kotaku) have blown in the wind, the company is facing an existential crisis.

Before I continue, I would suggest that you check out our detailed coverage of the Activision Blizzard Lawsuit. It's jarring stuff, and not to be sniffed at. We have tried our best to keep it as careful and succinct as possible, so I hope that it provides some much-need context for this article.

One of those above-listed articles contains further details on the EEOC settlement, which also ordered Activision Blizzard to create an $18 Million USD fund to help compensate victims. Does $18 Million USD really go all that far, though? It's a common problem that the victims of such crimes do not receive adequate compensation, and that's not so surprising. After all: how do you compensate someone who has been sexually harassed? If the discrimination at hand was simply the denial of promotions or higher-profile jobs for women, then financial compensation can be quantified; but how can you monetarily quantify sexual harassment? How can you quantify the impact of the suicide that allegedly occurred as a result of what the DFEH alleges?

The hard and bitter truth of the matter is that the investors whom, through the Securities and Exchange Commission (SEC), have subpoenaed Bobby Kotick's communications, will likely receive greater compensation than the victims themselves. If you want more details on that, check out The Wall Street Journal's piece on it, again: shocking stuff. The thing about the SEC investigation is that it focuses entirely on investor relations. The most important part of the whole Activision Blizzard issue is that those responsible for malpractices and discrimination are brought to justice. This is where the fear begins to creep in, though.

If Bill Cosby can be let off on a technicality, then a multi-billion dollar transnational corporation is surely capable of brushing off any litigation that may come its way. The fact that California has some of the strongest and most progressive workplace laws it certainly a benefit, and the fact that so-far the DFEH has brushed off the multiple attempts made by Activision Blizzard to sideline the issue, is a promising one. In addition, it looks like the WilmerHale relationship has not yet paid off for the TNC, which could be another promising sign for justice. Honestly, it cannot be overstated how concerning WilmerHale's "review" of Activision Blizzard's HR department is. Mike Fahey put it perfectly in his July 29 Kotaku piece when he said that "Basically, WilmerHale is a big, powerful law firm that takes on big, powerful clients."

The scariest thing? WilmerHale are the same company who represented multiple "Swiss banks accused of profiting from the Holocaust as well as German companies accused of exploiting forced labor during the Nazi era" (again, this snippet was taken form Fahey's Kotaku article Activision Blizzard Hires Union-Busting Firm As Workers Start To Come Together). Do you think that these guys have particularly strong ethical standards? Well, I'm not going to make any claims here, and I understand that everybody needs some sort of legal representation, but the plight of Activision Blizzard's HR Department? Yeah, I don't hold much hope.

Now, look, to answer a question I posed right up at the top of this article: should we be boycotting Activision Blizzard? Well, the answer is a little bit more complicated in my opinion. The road to resolution seems to be narrowing, with this $18 Million USD settlement clearly an attempt to slow down this derailing train. The clauses found within, allowing the removal of evidence from personnel files, will hopefully be successfully challenged by DFEH, but here's the cold hard truth of the matter: we need this train to fall off its rails, and to do this we need to keep putting coal in that engine.

To refuel the train we need to continue supporting Activision Blizzard's staff in their strikes, and any future walkouts they may organize. We also need to favor the company's competitors. It's a tricky topic, of course, because if Call of Duty: Vanguard doesn't do well (for example) then we could potentially see knock-on effects such as staff layoffs. It's a legitimate concern, but there are limited things that we can do. Activision Blizzard seem genuinely disinterested in anything except for the bottom-line, so a hit to their revenue could potentially inspire change. Thus, in my opinion, the Vanguard one is an easy choice to make. Battlefield 2042 and Halo Infinite are both out this year. They'll also probably be better. Play those games instead, show your support, keep informed, keep active on social media, and maybe we could see some real change in the future. After all, what's more important: justice, or another World War 2 shooter? I know what I'll choose.

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