The EEOC Litigation Review - 2023 - Report - Page 30
help Dr. Bursztajn with computer issues and the off-camera presence in the room of the
transcriptionist listening to the audio feed to record the true/false answers constituted
two clear violations of the court's “unambiguous” order that “attendees at the
examination are limited to Mr. Lescault and Dr. Bursztajn.” Id. at *11. The EEOC
contended that the defendant should be sanctioned by exclusion of both the
examination report and all testimony based on the examination. Id. The court ruled that
Dr. Bursztajn acted consistently with his reasonable interpretation of the court's order,
as well as with his professional opinion regarding best practice for performing the courtordered examination, and particularly for ensuring the accuracy of the subject's test
answers. Id. at *12. The court noted that there could have been some confusion as to
its order, and that any confusion could be addressed through testimony at trial. For
these reasons, the court denied the EEOC’s motion for sanctions.
EEOC v. Activision Blizzard, Inc., 2022 U.S. Dist. LEXIS 108166 (C.D. Cal. June 3,
2022), represented in many ways the most unusual procedural decision of 2022. The
Commission filed an action alleging that the defendant subjected female employees to
discrimination on the basis of their gender in violation of Title VII. The parties ultimately
settled the matter, and the court approved the settlement and granted entry of a consent
decree. The California Department of Fair Employment and Housing (DFEH)
subsequently moved to intervene for the purposes of appeal. The court previously
denied the DFEH’s motion to intervene in the case for broader purposes. The DFEH
did not argue that the standard for intervention on appeal is different from the standard
for intervention prior to judgment or that the DFEH somehow has a greater interest in
the case on appeal for Rule 24 purposes than it had prior to judgment. Id. at *1-2.
Instead, the DFEH argued that it should be allowed to intervene on appeal because the
EEOC “lacks authority over the claims in the case,” “failed to comply with mandatory
pre-suit conditions” under Title VII, and “failed to defer to DFEH's statutory rights” under
California law. Id. at *2. The court found that there were no new arguments regarding
reasons to permit intervention. For these reasons, the court denied the DFEH’s motion
to intervene.
In EEOC v. George Washington University, 2022 U.S. Dist. LEXIS 157848 (D.D.C.
Sept. 1, 2022), the Commission filed an action on behalf of charging party Sara
Williams, a former athletics department executive assistant, alleging that the defendant
failed to promote her and gave her only menial jobs due to her sex in violation of Title
VII. The EEOC filed a motion to compel the defendant to produce documents relating to
an internal investigation of discrimination filed with the defendant’s equal employment
opportunity office. The court denied the motion to compel. The EEOC contended that
the documents sought were related to the discrimination claims at issue. Defendant
contended that the documents were subject to attorney-client privilege because they
were prepared at the direction of the defendant’s counsel and were either prepared by
or sent to attorneys. The EEOC argued that the documents did not seek, contain, or
reflect legal advice, nor were they created in anticipation of litigation at the direction of
counsel. The court found that the documents were privileged as an attorney-client
communication, as the evidence was clear that obtaining legal advice was a “primary
purpose of the internal investigation and the documents from that investigation reflected
on the January 2022 Privilege Log.” Id. at *42. The court concluded that in addition to
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The EEOC Litigation Review – 2023
