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EEOC Nominee’s Litigation Record Focus of Senate Hearing (1)

May 10, 2022, 6:51 PMUpdated: May 10, 2022, 9:27 PM

President Joe Biden’s pick to fill a soon-to-be vacant seat on the U.S. Equal Employment Opportunity Commission told lawmakers her experience as a civil rights litigator would be central to her work on the commission.

Kalpana Kotagal, currently a civil rights attorney at Cohen Milstein Sellers & Toll PLLC, said in testimony before the Senate Health, Education, Labor and Pensions Committee Tuesday that her approach to the role would be informed by her experience as a litigator. In particular, she pointed to her experience representing workers in cases of pregnancy discrimination, disability discrimination, pay discrimination, and discrimination on the basis of gender identity as inspiration for her top priorities as a commissioner.

Kotagal said she has an extensive background as a litigator, and views litigation as a “crucial” part of what the EEOC does to enforce workplace anti-bias laws.

Biden announced last month his intent to nominate Kotagal to the EEOC to replace Republican Commissioner Janet Dhillon, whose term expires in July. If confirmed, Kotagal would give Democrats the majority on the five-member panel, allowing the agency to advance more progressive policies on Biden’s agenda.

Focus on Transparency

Sen. Mike Braun (R-Ind.) asked Kotagal if she would support the EEOC continuing to publicly disclose agency business, including litigation. The agency began doing so under the Trump administration, and has indicated it will continue that practice.

Kotagal didn’t commit to any stance on this, but said “transparency is an incredibly important value” in public service.

Sen. Richard Burr (R-N.C.), the ranking member of the committee but who had to miss the hearing, released a statement Tuesday afternoon saying Kotagal in meetings with his staff “refused to commit” to keeping commission votes public. Burr said he will oppose Kotagal’s nomination, pointing to her stance against workplace arbitration agreements.

“To Ms. Kotagal, class-action litigation seems to be the only effective means of obtaining relief for discrimination,” Burr said, noting that litigation can be costly for all parties.

Braun also said he’s worried the EEOC will shift some of that power back to the agency’s general counsel, once one is in place. That position has been vacant since March 2021, and Biden has yet to announce a nominee for that post.

“I understand that the commission has had a track record of delegating some litigation authority to the general counsel, and that there are some areas, including novel areas of law and areas that would involve substantial outlay of the commissions resources with respect to litigation, where commissioners do play an important role in approving the litigation,” Kotagal said.

Sen. Tina Smith (D-Minn.) pointed to a $5.5 million EEOC settlement with meat processor JBS USA LLC over claims that it denied prayer breaks to Muslim employees. She called the settlement a “drop in the bucket compared to what the company brings in” and asked Kotagal how she would approach establishing settlement amounts.

Kotagal responded that the process is formulaic, fact-specific, and relies on data analysis. There are also statutory caps on relief each person can recover.

“I don’t know enough about how the EEOC undertakes that process, but if I am so fortunate to be confirmed, as a litigator that’s something I would be interested in looking into,” she said.

Expanded Work on Disability

Sen. Tim Kaine (D-Va.) asked Kotagal about long Covid and how employers could accommodate workers who recently became disabled form the disease. Kotagal called it an “evolving landscape” where the EEOC should provide clear guidance, also noting the pandemic’s mental health impact.

“I think our understanding of what constitutes reasonable accommodations has expanded,” Kotagal said, pointing to remote work policies.

Sen. Bob Casey (D-Pa.) asked Kotagal for her perspective on paying workers with a disability a subminimum wage. The Fair Labor Standards Act permits this practice as long as employers obtain what is known as a 14(c) certificate, which are overseen by the US Department of Labor’s Wage and Hour Division. Casey has introduced legislation proposing to end this program.

“That strikes me as deeply problematic,” Kotagal said during the hearing, but acknowledged that the program doesn’t fall under the EEOC’s purview. “It is important from my perspective for workers to be paid fairly for their work.”

(Updated with comments from Sen. Richard Burr in seventh and eighth paragraphs.)

To contact the reporters on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com