Dive Brief:

• President Joe Biden announced April 1 the nomination of attorney Kalpana Kotagal to the U.S. Equal Employment Opportunity Commission in a move that would shift the agency’s composition to a 3-2 Democratic majority.
• Kotagal is a partner at plaintiff-side firm Cohen Milstein, a member of the firm’s civil rights and employment practice group and co-chair of its hiring and diversity committee, according to a White House statement. She is also a co-creator of the “inclusion rider,” a legal clause actors may embed into their contracts with film production studios stipulating that the studio will guarantee a certain level of diversity for a project.
• If confirmed by the Senate, Kotagal would presumably take the place of commissioner and former EEOC Chair Janet Dhillon, whose term expires in July. Democrats last had a 2-1 majority on the commission in 2019.

Dive Insight:

A glance at Kotagal’s past case work shows litigation experience in several cases involving discrimination and harassment claims. Cohen Milstein lists Kotagal as having contributed to the firm’s representation of the New York State Common Retirement Fund and the New York City Pension Funds in a derivative action against executives at Wynn Resorts over a pattern of alleged sexual harassment and assault.

The firm also listed Kotagal as being part of a group that worked with the Transgender Legal Defense & Education Fund to update the clinical policy bulletin of health insurer Aetna. Cohen Milstein and TLDEF represented a group of transgender women who said Aetna denied coverage of certain gender-affirming surgeries.

“Kalpana has dedicated her professional career to workers who have been victims of employment discrimination,” Joe Sellers, partner at Cohen Milstein, said in an email. “She will bring to the EEOC a deep and thoughtful understanding of the ways employment laws work and don’t work in this country. She will be an invaluable addition to the Commission.”

But the most notable item on Kotagal’s resume may be her work in co-creating the inclusion rider, which received widespread attention following a 2018 acceptance speech from actress Frances McDormand at that year’s Academy Awards. Other high-profile actors would go on to adopt the practice.

In a 2019 TEDx presentation, Kotagal discussed the origin of the concept and the timeline of its adoption in the year since McDormand’s speech. Part of her talk touched on criticism of inclusion riders and its connection to broader pushback against diversity efforts at U.S. workplaces.

“These are the same arguments we’ve heard for decades about why deepening diversity in workplaces will fail,” Kotagal said. “And at their root is the unsupported idea that there cannot possibly be enough qualified candidates from underrepresented backgrounds, that somehow we have to choose between an excellent workforce and a diverse workforce.”

Kotagal’s nomination comes during what could be a pivotal year for the EEOC. During a Society for Human Resource Management conference last month, commissioners Jocelyn Samuels, a Democrat, and Andrea Lucas, a Republican, outlined a set of priority areas for the agency in 2022. COVID-19 vaccine mandates and hiring diversity were among the highlights, the latter exemplified by the agency’s recent settlement with video game publisher Activision Blizzard.

The EEOC is also due to receive the results of an analysis of pay data collected from employers as part of Component 2 of the 2017 and 2018 EEO-1 fiscal year reporting cycles. The agency has not yet provided a timeline for the report’s publication, but the report could serve as an indicator for how the Biden administration will approach pay data collection over the near-term.