What Can Activision's Own Investigation of Harassment Actually Accomplish?

Labor relations experts say it's fair to ask whether Activision Blizzard is acting in good faith.
July 29, 2021, 1:54pm
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Tod Seelie 
On the Clock is Motherboard's reporting on the organized labor movement, gig work, automation, and the future of work.

A week after being sued by the state of California for sexual harassment and discrimination, gaming giant Activision Blizzard has hired the law firm WilmerHale to separately conduct an investigation into the company. This comes after initially condemning the findings of a two-year investigation by the state of California that determined that the company fostered a culture of sexual harassment, abuse, and discrimination against women, women of color, and transgender women at the company, describing it as "a breeding ground for harassment."

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In a letter to employees and investors, Activision Blizzard CEO Bobby Kotick apologized on Tuesday for the company's "tone-deaf" response to the allegations, noting that he hired a law firm that would immediately "evaluate managers and leaders across the company" and "investigate each and every claim." 

"I have asked the law firm WilmerHale to conduct a review of our policies and procedures to ensure that we have and maintain best practices to promote a respectful and inclusive workplace," Kotick wrote in a public statement on Tuesday. "This work will begin immediately." Kotick—who has a history of fighting off sexual harassment lawsuits, and previously hired Harvey Weinstein's lawyer, Patricia Glaser, to defend himself—noted that the company would "not hesitate to take decisive action" against employees including termination. 

One of the largest law firms in the United States, WilmerHale provides a wide variety of legal services across many industries. It also specializes in labor management relations, including "union awareness and avoidance" and "managing strikes," according to the profiles of a handful of its labor attorneys on its website, and has represented a casino in coercion  charges brought by the Teamsters. "Union avoidance" is a common euphemism for union-busting, or the work of assisting employers in fending off union drives. In a 2018 article in The Practical Lawyer, two WilmerHale labor attorneys offered "tips for employers who wish to stay union free." 

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Kotick's letter invited employees with experiences who believe violate the company's policies or who were made uncomfortable in the workplace to speak confidentially to WilmerHale, but labor relations experts say it's fair to ask whether Activision Blizzard is acting in good faith.

There's also the question of the independence of the investigators, given their client is Activision Blizzard. 

"It was only after a two year investigation by the state of California and the government suing them that Activision hired WilmerHale," said Risa Lieberwitz, a professor of law and employment law at Cornell University. "Anybody looking at this would logically and rationally question whether the company is acting in good faith, but I think the key question is whether the company is feeling sufficient pressure to actually make deep and wide changes to remedy the problems that exist. These are massive allegations in terms of scope."

Kotick's letter arrives after more than 1,600 Activision employees–one-third of its workforce have signed onto a letter, demanding change at the company, and walked out en masse on Wednesday. Their demands include ending mandatory arbitration clauses that silence workers; disclosing compensation, promotion rates, and salary ranges "for employees of all genders and ethnicities;" and adopting new hiring and promotion policies.

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Experts say that while it is rare for the company to rely on their own human resources department in the case of allegations as grave as those facing Activision Blizzard, the company could have hired an outside consultant or organization that has expertise in addressing and resolving sexual harassment and discrimination in the workplace rather than going with a law firm. Further, by choosing WilmerHale, a law firm specializing in union-busting, Activision Blizzard sends a different sort of message to employees who are in the process of organizing. 

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"What’s the law firm likely to do? In most cases, the law firm comes in, has conversations with workers and management and tries to get to the bottom of what happened and make suggestions," said Janice Fine, a professor of labor and employment relations at Rutgers University. 

"This brings up issues about power and asymmetry of power," she continued. "The idea of one side bringing in a law firm that has a reputation of being opposed to how workers address the asymmetry of power in the workplace through union organizing is not encouraging. They might have smart people at the law firm, but what power will workers have to determine the remedy?"

According to the lawsuit, high-ranking managers at the company engaged in blatant sexual harassment without repercussions. 

Asked if WilmerHale is advising Activision Blizzard on labor organizing at the company, Frank James, a firm spokesperson said via email, "The firm has extensive experience assessing workplace culture and helping organizations strengthen their workplace environments by making improvements to their governance, policies, and procedures around discrimination, harassment, and retaliation issues."

Activision Blizzard did not respond to a question about whether the law firm is advising the company on labor organizing related matters.

Lieberwitz said that workers' decision to take collective action certainly has already had an enormous impact on pushing the company to make changes. "I don't think any of this would have happened without the collective action of employees, going to the government, going to the press, making statements and walking out. I think employees acting together can realize how powerful their collective action can be and lead workers to say 'what's the next step?' Unionization is often an important collective next step."