April 06, 2022

Cohen Milstein Sellers & Toll PLLC partner Kalpana Kotagal, recently tapped by President Joe Biden to serve on the U.S. Equal Employment Opportunity Commission, is best known for her work on the #MeToo-inspired Hollywood "inclusion rider." But Kotagal has taken on more than Tinseltown in her legal career.

Kalpana Kotagal, a member of Cohen Milstein's civil rights and employment practice group, would give Democrats a majority on the Equal Employment Opportunity Commission if confirmed.

If confirmed by the Senate, Kotagal will replace EEOC commissioner and Trump appointee Janet Dhillon, whose term is up July 1. That would give Democrats control of the five-person commission for the first time in Biden's term, setting the stage for the agency to potentially tackle an array of issues.

Kotagal, a member of plaintiff-side Cohen Milstein's civil rights and employment practice group and chair of its hiring and diversity committee, brings with her a wide range of experience that experts say will factor into how she handles herself if and when she joins the federal workplace bias watchdog. She joined Cohen Milstein as a summer associate in 2004 and as an associate in 2006, according to a firm spokesperson.

"Kalpana has been an invaluable part of our litigation team in representing workers claiming to have been victims of various kinds of discrimination, and I think is intimately acquainted with the challenges workers face in bringing discrimination cases and succeeding in bringing those claims," said Joseph Sellers, co-chair and founder of Cohen Milstein's civil rights and employment group, on Wednesday.

"She has a real working knowledge of the way the [equal employment opportunity] laws work and don't work," he added.

Here, Law360 — which named Kotagal a Rising Star in 2017 and an MVP the following year — takes a look at a trio of highlights from her track record as an employment attorney.

A 'Seminal Legal Template'

Kotagal worked with Stacy Smith at the Annenberg Inclusion Initiative and Pearl Street Films executive Fanshen Cox to author the inclusion rider, a contract addendum born in Hollywood that allows the signee to stipulate that the hiring body must bring a diverse group of workers on to a project.

Inclusion riders gained traction after they were famously invoked by actress Frances McDormand on the Oscars stage in 2018, just months after news reports about allegations of sexual assault by disgraced film executive Harvey Weinstein launched the #MeToo movement.

In its announcement of Kotagal's likely nomination Friday, the White House called the inclusion rider a "seminal legal template."

"It does not provide for quotas; rather, it stipulates consideration of the deep bench of talented candidates from historically underrepresented groups and strongly encourages hiring of qualified individuals from those under-represented backgrounds," Kotagal wrote in a 2019 Law360 expert analysis about the inclusion rider.

The developers of the rider announced an update in 2021. The four core principles of the new version were deepening and diversifying hiring pools, setting goals and benchmarks for progress, collecting and recording data, and the importance of accountability, Kotagal told Law360 then.

'A Real Lawyer's Lawyer'

For her 2017 Rising Stars profile, Kotagal told Law360 that her representation of tens of thousands of women who accused Sterling Jewelers Inc. of widespread gender bias in pay and promotions was the biggest case of her career at that point.

The case is scheduled for a trial before an arbitrator in September, Cohen Milstein's Sellers told Law360 on Tuesday. The firm is one of several that have represented a class of between 70,000 and 75,000 women bringing claims under Title VII of the Civil Rights Act of 1964, as well as a separate collective of about 9,000 women who opted into an Equal Pay Act claim, Sellers said.

In October 2020, Cohen Milstein had earned a victory in the long-running case when the U.S. Supreme Court declined to hear Sterling Jewelers' petition seeking to limit when workers can pursue class arbitration.

Kotagal told Law360 in 2017 the Sterling case was "one of first cases to be certified as a nationwide class" in the wake of the U.S. Supreme Court's landmark 2011 Wal-Mart v. Dukes ruling, which decertified a class of roughly 1.5 million women claiming gender discrimination against the retailer and heightened the bar for class certification.

"We're quite proud of the work we did in discovery and in class certification briefing and oral argument to make that happen," Kotagal said then.

Sellers, who represented the workers in the Dukes case, also pointed to Kotagal as having contributed deeply to their work in Dukes.

Seyfarth Shaw LLP partner Jerry Maatman, who faced off against Kotagal as opposing counsel in the Sterling arbitration case, among others, offered high praise for her in an interview Wednesday, saying he thinks she'll become a "favorite" at the EEOC headquarters.

"She is a gifted attorney and outstanding in terms of being an advocate for her clients," he said. "And so having someone with that superior skill set at the commission, a real lawyer's lawyer, I think will certainly add to the discussion in the room of the commissioners."

'The Importance of Getting These Issues Right'

In January 2021, Aetna said it would cover breast augmentation surgery for transfeminine policyholders, after Kotagal, along with other Cohen Milstein lawyers and the Transgender Legal Defense & Education Fund, raised the issue with the health insurance giant.

The change will classify breast augmentations as medically necessary procedures instead of cosmetic ones, Aetna said. Transfeminine policyholders must meet certain requirements to qualify for coverage, including a referral from a mental health provider, completion of a year of hormone therapy and "persistent, well-documented gender dysphoria."

"This is a landscape that is inconsistent," Kotagal told Law360 at the time. "Some insurance companies are starting to recognize the importance of getting these issues right. Others are farther behind."

David Brown, legal director of the Transgender Legal Defense and Education Fund, told Law360 on Thursday that they're "impressed by Kalpana's commitment to civil rights," especially on behalf of the transgender community, which they said is facing "increasing" attacks.

"During our negotiation with Aetna, Kalpana approached what could have been an adversarial process in a collaborative and consensus-building manner that was key to our success. She is a fair-minded problem-solver, able to not just hear folks with differing points of view but come to solutions that leave everyone better than before the interaction," Brown said.

Kotagal also noted to Law360 last year that Aetna's announcement came amid a series of wins for LGBTQ rights advocates. On his first day in office, Biden adopted a broad interpretation of 2020's blockbuster U.S. Supreme Court decision in Bostock v. Clayton County, which held that Title VII covers gender identity and sexual orientation. He also lifted the transgender military ban.

"The Biden administration has come out of the gate with an emphasis on LGBTQ civil rights," Kotagal said. "This is one of the first announcements of its kind, but I don't think it will be the last."

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