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Why Kalpana Kotagal Should Be Confirmed as EEOC Commissioner

Sept. 6, 2022, 8:00 AM

The Equal Employment Opportunity Commission has long stood at the forefront of worker rights and served as the first line of defense for equal pay and equal opportunity. Senators should quickly move to confirm Kalpana Kotagal, President Joe Biden’s nominee to serve as commissioner of one of the most critical agencies in Washington.

Workers in every part of the US, across all industries, need someone who will effectively fight workplace discrimination and inequality. As EEOC commissioner, Kotagal will help steer the agency in the right direction during a time when implementing equitable hiring practices and enforcing workplace protections are more important than ever.

In this role, Kotagal would continue the agency’s forward-thinking tradition. Years before the US Supreme Court’s Bostock v. Clayton County decision that federal nondiscrimination laws protect gay and transgender Americans, the Equal Employment Opportunity Commission issued its own ruling on the issue. Aimee Stephens, a transgender woman who was fired by a funeral home because she presented as her true self in the workplace, took her case to the federal agency and secured a landmark decision that set the stage for Bostock.

By the time Bostock reached the high court, the idea that LGBTQ+ Americans were protected by Title VII of the Civil Rights Act was so broadly accepted that Justice Neil Gorsuch wrote the court’s opinion, and was joined by Chief Justice John Roberts in extending workplace protections.

The EEOC’s earlier decision on behalf of Stephens undoubtedly helped unite conservative and progressive thinking on the issue.

The agency’s work to protect Stephens and millions of other LGBTQ+ employees was just one example of where the EEOC led on critical issues of workplace equality and nondiscrimination. In 2008, the agency stood with employees of the drugstore chain Walgreens, securing a $24 million settlement for denying equal pay and promotional opportunities to Black employees. It still stands as one of the largest settlements in EEOC history, and followed a headline-grabbing settlement in 2004 against Abercrombie & Fitch for the retail chain’s policies limiting minority and female employment opportunities.

Consensus Building

Kotagal has a strong and impressive record of worker advocacy that both Republicans and Democrats can support. Her work is in the tradition of consensus building that bridged the ideological gaps in the Bostock case. At a time of deep division in our country, Kotagal’s work with blue-collar workers in red states, and high-profile advocates pushing for pro-worker change in major industries, presents an opportunity to put a champion of inclusion into a key role in our government.

Kotagal is mostly recognized for her work on the inclusion rider, a contractual agreement used in the film industry to ensure equal employment opportunities for women and minorities and brought to light by Frances McDormand during her 2018 Oscar acceptance speech. However, Kotagal has an equally impressive track record advocating for workers in the heartland as she does pressing for change in Hollywood.

Her legal career has included critical cases on behalf of women, the LGBTQ+ community, people with disabilities, and those fighting racial discrimination in the workplace. Her clients have included more than 69,000 female employees of Sterling Jewelers, one of the nation’s largest jewelry chains, in a nationwide Title VII gender discrimination and Equal Pay Act case, AT&T sales representatives who faced pregnancy discrimination on the job, and millions of female Walmart employees who fought for equal pay and promotion opportunities.

She also won a life-changing settlement for transgender Aetna patients when the insurer expanded its health-care coverage for gender-affirming surgery.

Passion for Workplace Equality

Each of these cases shows Kotagal’s deep expertise and dedication to workplace equality—whether for a Walmart worker in West Virginia or an Arizona jewelry store employee. Kotagal believes in everyone’s fundamental right to equal pay for equal work and equal opportunity for an equal shot at making a living and providing for their families. Her nomination should be a no-brainer for senators from both parties, and her clear and compelling qualifications for the job should be the only consideration in advancing her nomination.

At a moment when some voices are calling for turning back the clock on decades of broadly popular protections, senators have an opportunity to put aside partisan differences and put a true champion of workers on the job at the EEOC. Kotagal is the perfect choice for an agency that has long been the first champion of workers and the bridge that finds commonsense, common-ground policies that ensure we are all protected, and equal, on the job.

Giving every American the opportunity to work hard, succeed in the workplace, and make a difference, regardless of who they are, should be the least our lawmakers can agree on. Kotagal will uphold that approach to her work at the EEOC and be a commissioner that everyone, of every background and ideology, can be proud of.

The US Senate should break the deadlock on her nomination and confirm her for this important job without delay.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Paul Bland is executive director of Public Justice, overseeing its advocacy and litigation of consumer, environmental, and civil rights cases. He has argued and won more than 40 reported decisions, including at least one case in the US Supreme Court, six of the federal circuit courts of appeal, and 10 different state high courts.