Senate Confirms Kotagal for EEOC, Giving Democrats Majority (1)

The Senate approved Kalpana Kotagal’s nomination to be a commissioner of the Equal Employment Opportunity Commission, handing Democrats a majority for the first time since President Joe Biden took office.

Senators voted 49-47 Thursday to confirm Kotagal, a civil rights and employment attorney at Cohen Milstein in Washington, D.C., as the fifth commissioner on the agency tasked with prohibiting employment discrimination.

Sen. Joe Manchin (W.Va.) was the sole Democrat to vote against Kotagal.

“Ms. Kotagal does not represent West Virginia values and would prioritize a partisan agenda over creating commonsense, bipartisan solutions that bring our nation forward,” Manchin said in a statement before the vote.

“Ultimately, I did not support Ms. Kotagal because the EEOC should remain as free as possible of partisan ideologies when making important decisions for America’s workers and businesses,” he said.

The West Virginia Chamber of Commerce, an influential business group based in Manchin’s home state, opposed Kotagal when Biden nominated her last year, saying she had “the potential to impede economic growth and opportunity.”

Kotagal’s confirmation marks a lengthy process to establish a Democratic majority on the five-member independent agency. The commission will now have a full slate of members as it prioritizes artificial intelligence bias and enforcement of a pregnancy discrimination law and tackles more progressive policy goals.

Biden first nominated Kotagal in April 2022 to replace Republican commissioner Janet Dhillon. But the Senate’s Health, Labor, Education, and Pensions Committee deadlocked on Kotagal’s nomination later that year.

A new one-vote Democratic majority in the Senate this year was able to ensure Kotagal advanced the panel in a party-line vote in March, setting her up for floor consideration.

“People in this country need equal opportunity,” Sen. Bernie Sanders (I-Vt.), chair of the HELP committee, said before the vote Thursday.

Business Concern

During her confirmation hearing last year, Republican lawmakers expressed concern that Kotagal would block transparency efforts at the commission, as she declined to take a stance on whether she supported a Trump-era trend of the agency publicly disclosing its business, including votes on litigation.

Kotagal currently sits on Cohen Milstein’s civil rights and employment practice group and co-chairs the firm’s hiring and diversity committee. During her time as a civil rights attorney, she represented nearly 70,000 female Sterling Jewelers employees who claimed they were subjected to multiple Title VII and Equal Pay Act violations.

Roger King, an attorney for the HR Policy Association, said that while the non-profit does not take formal positions on nominees, it’s looking forward to working with Kotagal.

“We would hope and expect that she would be available to the business community to listen to our interests and concerns on EEOC jurisdiction and EEOC policy,” King said.

Karla Gilbride, Biden’s pick for EEOC general counsel, has been waiting for a Senate vote for over a year. Meanwhile, EEOC Chair Charlotte Burrows was renominated for a third term last month.

Burrows and Gilbride are likely to face an easier road to confirmation than Kotagal.

Burrows was confirmed to her current term unanimously, while Gilbride got the support of Sen. Susan Collins (R-Maine) when she advanced out of the HELP panel in February.