EEOC Commissioner Votes Skyrocket After Kotagal Joins Agency

The number of votes by the Equal Employment Opportunity Commission increased drastically after the addition of Democratic Commissioner Kalpana Kotagal in August, signaling the civil rights agency is gearing up for a busy year of litigation and rulemaking.

From August through October, following Kotagal’s swearing in, the five-member panel has had over twice as many votes as in the three months leading up to her arrival, according to a Bloomberg Law analysis. The EEOC votes on issuing regulations and guidance, launching discrimination lawsuits, and filing friend-of-the-court briefs in cases it views as raising novel or important issues.

Kotagal’s swearing in broke a 2-2 partisan deadlock on the commission and is helping move the EEOC’s new Democratic majority’s regulatory and litigation priorities forward, according to employment lawyers. Those focus areas include targeting systemic bias, clarifying pregnancy accommodations, and prioritizing pay equity.

“I’m sure they’re going to bring high-profile cases that align with the commission’s current priorities on certain enforcement matters. All of that, I would expect to see in the coming months and years,” said Andrew Maunz, an employer-side attorney at Jackson Lewis P.C. and former EEOC legal counsel.

Interactive chart: The EEOC more than doubled its vote volume since Kotagal’s confirmation.

Increase in Votes

In the 80 days prior to Kotagal’s swearing in, the commission voted on 27 issues. In comparison, they voted on 58 in the 80 days after the commissioner officially joined the EEOC on Aug. 9.

Maunz said that the most likely reason for the jump is that “the EEOC works based on majority vote, and certain big things need to get done through having a majority of the commissioners approve them.”

Kotagal has voted with her two fellow Democrats on every issue the commission has considered thus far, boosting the majority’s power in many 3-2 votes. There have been 17 total 3-2 party-line votes from Aug. 9 through October.

Following Kotagal’s addition, the agency filed a lawsuit against Tesla Inc. alleging it created a hostile work environment for Black workers at its factory in Fremont, Calif. The decision to bring this lawsuit hinged on a 3-2 vote along partisan lines.

Kotagal’s vote also helped the commission bring litigation against Walmart, Inc. and Walmart Stores Arkansas LLC over disability bias. The commission alleged that Walmart discriminated against disabled employees by requiring them to take an unnecessary assessment test and firing them when they didn’t pass.

In a statement to Bloomberg Law, the new Democratic commissioner and former litigator attributed the uptick in commission votes since she joined the EEOC to the end of the federal government’s year on Sept. 30.

“The pace of litigation filings typically increases as the end of the fiscal year approaches,” said Kotagal.

Interactive graphic: the EEOC has voted on many different issues since mid-August.

Commission Priorities

Kotagal’s Democratic vote appears to have been integral to the commission’s 3-2 approval in August of its strategic plan for 2022-2026. The commission’s previous strategic plan had covered 2018-2022.

The EEOC highlighted in the plan a focus on systemic discrimination and said that it aims to have 90% of its settlements and litigation resolutions contain “targeted, equitable relief,” such as compliance monitoring and customized training, by the 2025 fiscal year.

Democratic commissioners’ abilities to push forward litigation priorities will likely be enhanced after the addition of EEOC General Counsel Karla Gilbride on Oct. 23, filling a position that was vacant for over two years.

Kotagal has already had an impact on the agency’s regulatory work as well. She was the key third Democrat in a party-line panel vote to approve a regulatory agenda for the EEOC on Aug. 30. The document become public in December, marking the first time in over two years the commission has been able to release a regulatory playbook.

Recently re-confirmed EEOC Chair Charlotte Burrows, who is responsible for directing the work of the agency, has said that the implementation of the Pregnant Workers Fairness Act—which requires employers to provide reasonable accommodations for pregnancy-related medical conditions—and workplace harassment guidance are top priorities for her.

Kotagal said in her statement that meaningful PWFA implementation is a “top priority.” The commission is currently finalizing its PWFA rulemaking.

Kotagal’s vote allowed for party-line approval of long-awaited workplace harassment guidance Aug. 22. The guidance has attracted the ire of some Republicans who say it goes too far in terms of protections for LGBTQ+ workers.

“Preventing and addressing harassment, including by updating the enforcement guidance to reflect changes in the law, is also urgently needed,” Kotagal said.

“I think that what the Chair was doing was finding ways of having the commission move forward,” said David Fortney, co-founder of Fortney & Scott LLC. “But on some of the more significant policy issues that weren’t under a specific time frame, I think she deferred on those in the hopes that both Commissioner Kotagal would be confirmed, and that she herself would be confirmed.”

Burrows has also said she is prioritizing equal pay and has signaled an interest in reviving the agency’s short-lived, controversial requirement for employers to annually report their compensation data by race and sex.

Pay equity has been a focus of Kotagal’s in her career as a civil rights litigator at law firm Cohen Milstein.

“She is the subject matter expert on compensation and in her prior life for quite a while she was very closely involved in litigating claims representing persons dealing with class actions, collecting pay data, certain claims under Title VII, etc.,” Fortney said. “As a practical matter, she’s going to be somewhat the center of gravity.”