Burr Questions Biden EEOC Nominee’s Lack of Impartiality, Commitment to Transparency

May 10, 2022

Today, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a nomination hearing for Kalpana Kotagal to be a Member of the Equal Employment Opportunity Commission (EEOC).

In his submitted statement for the record, Ranking Member Richard Burr (R-NC) expressed his concern on Ms. Kotagal’s radical political ties, lack of impartiality, and unwillingness to commit to transparency that is critical to the Commission.

Senator Burr’s submitted statement for the record:

“Senator Richard Burr (R-NC), Ranking Member of the U.S. Senate Committee on Health, Education, Labor and Pensions, submits the following statement for the record in opposition to the nomination of Kalpana Kotagal to be Commissioner of the Equal Employment Opportunity Commission:

“Since its inception in 1965, the Equal Employment Opportunity Commission has been integral to this country’s fight against discrimination in the workplace.  For nearly sixty years, the EEOC has used its resources to improve or in many cases eliminate discrimination and impediments to equal opportunity in the workplace.  To ensure public trust, it is essential that the EEOC strive to be above politics and partisanship and enforce our nation’s laws. Ensuring equal opportunity for all within the workplace—regardless of race, sex, gender, and numerous other protected categories—is a fundamentally guaranteed American trait. 

“However, Ms. Kalpana Kotagal’s nomination undermines those fundamental notions of fairness and would bring partisanship and political interpretation to the EEOC. For this overriding reason, I oppose Ms. Kotagal’s nomination and urge my colleagues to do the same.

“As a public institution, the EEOC must be accountable and responsive to the public.  Under the previous Chair Janet Dhillon, the EEOC has reformed itself to be more transparent. Commission votes, public meetings, and hearings are posted on the EEOC’s website and easily accessible to the public. The General Counsel was required to submit certain classes of proposed litigation to the Commission for a vote by every Commissioner. These basic measures of transparency and accountability allowed for greater confidence among the public, employers, and workers in the Commission’s decisions.

“Yet Ms. Kotagal refused to commit to any of these reforms during her interview with my staff.  The EEOC has not held any public meetings since January 7, 2021, and has held only one public hearing since that date.  Basic measures of transparency, as well as Commission deliberations on whether to proceed on certain classes of litigation, particularly litigation that raises novel areas of law or issues upon which the Commission has not released guidance, is integral to due process and fairness. Ms. Kotagal’s refusal to continue these common-sense measures speaks volumes of her lack of commitment to due process and transparency.

“I am concerned Ms. Kotagal lacks impartiality to interpret the law, and I will oppose her nomination.  The nominee testified as an expert in favor of banning the use of pre-dispute arbitration agreements in the workplace, or in the least only permitting unions to reap arbitration’s benefits. The nominee has also failed to explain why it is permissible to uphold the bargaining power of unions but limit that of individual workers.  Ms. Kotagal has criticized the Supreme Court for upholding the plain language of the Federal Arbitration Act, and wishes to curtail employees’ ability to enter into arbitration proceedings. To Ms. Kotagal, class-action litigation seems to be the only effective means of obtaining relief for discrimination. However, Ms. Kotagal failed to note that class-action plaintiffs often get less monetary relief as a result of courts liberally certifying large classes of plaintiffs with uncommon interests. The process for class certification is itself often costly, requiring the hiring of attorneys at great expense to the average person. All of these are factors Ms. Kotagal failed to consider, or even acknowledge, in her submitted congressional testimony. 

“Ms. Kotagal has a history of political activism whose policy judgments would bring partisanship to the EEOC.  As a class-action lawyer in the private sector, Ms. Kotagal served as a Board Advisory Member to the People’s Parity Project, an affiliation she initially failed to disclose.  The People’s Parity Project has become notorious for launching intimidation campaigns against law firms and law schools to prevent the hiring of public servants who previously served in the Trump Administration. In an open letter, the People’s Parity Project proudly asserts their intention to criminalize policy differences by naming a number of esteemed public servants and demanding employers refuse to hire any of those distinguished individuals ‘to show there are consequences’ for serving a disfavored Administration.  Instead of condemning the leak of a draft, pre-decisional Supreme Court opinion, the People’s Parity Project instead urged more intimidation against the Court through their rhetoric, referring to the Supreme Court as an ‘illegitimate political actor’ and urging its followers to allow the leaking of the opinion to ‘radicalize us.’

“Additionally, Ms. Kotagal has not been transparent with this Committee regarding her social media presence, having admitted to deleting thousands of Tweets.  For these reasons, I oppose Ms. Kotagal’s nomination, and I urge all of my colleagues to do the same.”