Democrat Kalpana Kotagal Sworn in as Newest EEOC Commissioner

Kalpana Kotagal has been sworn in as an EEOC commissioner, providing the five-member panel with a Democratic majority, and breaking a partisan deadlock that has slowed agency action.

She was sworn in by the chair of the Equal Employment Opportunity Commission, Charlotte Burrows, on Wednesday.

Ohio-native Kotagal, formerly a longtime civil rights and employment attorney at Cohen Milstein Sellers & Toll PLLC in Washington, D.C., brings to the agency plaintiffs-side bona fides that include representing workers in discrimination class actions against large companies and organizations such as the Salvation Army and Wal-Mart Inc.

Her addition to the commission is expected to help the EEOC’s new Democratic majority tackle a range of regulatory and litigation objectives, such as clarifying pregnancy accommodations and potentially reviving employer pay data reports.

She was narrowly confirmed last month in a 49-47 Senate vote to serve a five-year term.

Sen. Joe Manchin (W.Va.) was the sole Democrat to vote against Kotagal, saying “the EEOC should remain as free as possible of partisan ideologies when making important decisions for America’s workers and businesses.”

Kotagal is perhaps best known as the co-author of the “Inclusion Rider,” a provision in an actor or filmmaker’s contract to ensure equity and inclusion at every level in a production. It was referenced by actor Frances McDormand in her 2018 Oscars acceptance speech.

Diversity and inclusion initiatives have become a topic of national debate after the US Supreme Court’s decision this summer overturning affirmative action programs at universities. The ruling prompted EEOC commissioners to comment on the legality of DEI programs in the corporate setting.

Kotagal co-chaired Cohen Milstein’s hiring and diversity committee and is well-known at the firm for spearheading a fellowship for recent law graduates and clerks that recruits from diverse backgrounds.

“It has become an incredibly sought after position. We get hundreds of applicants for these positions and it’s just been a really wild success,” said Betsy Miller, a partner at the firm who has worked closely with Kotagal on DEI.

EEOC Priorities

A letter signed by more than 93 civil rights, workers rights, and gender equality organizations in September supporting Kotagal’s nomination cited her “experience addressing systemic discrimination.”

During her time as a civil rights attorney, Kotagal represented nearly 70,000 female Sterling Jewelers Inc. employees who claimed they were subjected to multiple violations under Title VII of the 1964 Civil Rights Act and the Equal Pay Act.

She also represented former AT&T representatives alongside the American Civil Liberties Union in a pregnancy discrimination class action, which alleged that AT&T Mobility’s policies violated the Pregnancy Discrimination Act and Americans with Disabilities Act.

Former EEOC Commissioner Victoria Lipnic, now a partner at Resolution Economics, said she expects the recently released draft Pregnant Workers Fairness Act regulations may be of interest to Kotagal, given her work on pregnancy-bias litigation.

The PWFA guidelines have already drawn criticism from a leading Senate Republican over their treatment of abortion.

Lipnic also predicted that Kotagal may weigh in on the commission’s potential delegation of more power to the general counsel’s office to initiate or intervene in litigation against employers.

The EEOC’s Republican majority voted to shift litigation power away from the general counsel back to the commission, but it’s unclear whether Burrows as chair will move to reverse that decision, armed with a Democratic majority.

“It’s an honor to start a new chapter as an EEOC Commissioner and an incredible opportunity to apply the experience from my previous work,” Kotagal said in a statement on Wednesday. “I look forward to working toward solutions for the issues facing today’s workforce alongside my colleagues on the Commission and in the agency.”