White House names co-creator of Hollywood ‘rider of inclusion’ at EEOC

Diving 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 boost the agency’s membership to a 3-2 Democratic majority.
  • Kotagal is a partner at the Cohen Milstein law firm, plaintiff, a member of the firm’s civil rights and employment practice group and co-chair of its recruiting and diversity committee, according to a White House statement. She is also co-creator the “inclusion endorsement”, a legal clause that actors can include in 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 likely take the place of Commissioner and former EEOC President Janet Dhillon, whose term expires in July. Democrats the latter had a majority of 2 to 1 to the commission in 2019.

Overview of the dive:

A look at Kotagal’s past records shows litigation experience in several cases involving allegations of discrimination and harassment. Cohen Milstein lists Kotagal as instrumental in the company’s representation of the New York State Joint Retirement Fund and New York City pension funds in a derivative action against Wynn Resorts executives on a pattern of alleged sexual harassment and assault.

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

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

But perhaps the most notable element of Kotagal’s resume is his work co-creating The Rider of Inclusion, which received wide attention following an acceptance speech from actress Frances McDormand in 2018 at that year’s Oscars. Other high profile players would continue to practice.

In a 2019 TEDx Presentation, Kotagal discussed the origin of the concept and the timeline of its adoption in the year following McDormand’s speech. Part of his speech focused on criticism of inclusion runners and its connection to a broader pushback against diversity efforts in American workplaces.

“These are the same arguments we’ve been hearing for decades about why deepening diversity in the workplace will fail,” Kotagal said. “And at their root is the unsubstantiated idea that there can’t be enough qualified applicants from underrepresented backgrounds, that we somehow have to choose between a great workforce and a diverse workforce.”

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

The EEOC is also should receive the results an analysis of salary data collected from employers as part of Component 2 of the EEO-1 2017 and 2018 exercise reporting cycles. The agency has not yet provided a timeline for the release of the report, but the report could serve as an indicator of how the Biden administration discuss compensation data collection short term.

Editor’s Note: This story has been updated to include a statement from Cohen Milstein.

Earnest L. Veasey