The weeks and months following the 2016 election underscored an important point that should remain a warning to progressives even today: There are a number of vitally important positions within the federal government that have an enormous influence on the direction of our country. These include, of course, cabinet-level appointments and federal judges, but they also include other equally important, but less visible, positions. Trump’s people understood this well, and used these positions to dramatically shift the course of the nation and, in many ways, tear down good governance from the inside out.
Conversely, of course, putting the right people in those jobs can be a powerful force for good, using the power of crucial agencies to improve the lives of a great many people. As the new Congress looks like it will be unlikely to pass progressive legislation, the role that government agencies can play in advancing the public interest will be particularly important over the next two years.
That’s one of many reasons that it is so vital that Senate Majority Leader Chuck Schumer act swiftly to move forward President Biden’s nomination of Kalpana Kotagal to serve as Commissioner of the Equality Employment Opportunity Council.
The EEOC is a tremendously important agency for workers in our country and plays a pivotal role in battling discrimination and inequality. EEOC Commissioners have an extraordinary influence on workplaces across the country. Years before the US Supreme Court’s Bostock v. Clayton County decision that federal nondiscrimination laws protect gay and transgender Americans, for example, the EEOC issued its own ruling on the issue. Aimee Stephens, a transgender woman who was fired by a funeral home because she presented as her true self in the workplace, took her case to the federal agency and secured a landmark decision that set the stage for Bostock. And in 2008, the agency stood with employees of the drugstore chain Walgreens, securing a $24 million settlement for denying equal pay and promotional opportunities to Black employees.
If confirmed, Kotagal would serve a five-year term as Commissioner – an important insurance policy as the country looks beyond 2024 to the possibility of a much less progressive legislature or Administration. Having fair-minded, pro-worker leadership at the EEOC could go a long way in pushing back on the damage that the President and lawmakers could try to do after the next election.
That is, not surprisingly, a key reason Kotagal’s nomination has not yet moved forward. The Senate HELP Committee voted along party lines following her confirmation hearing, resulting in a tie that requires Majority Leader Schumer to move her nomination forward via a discharge petition, which then allows the full Senate to give an up-or-down vote. Republican Senators oppose such a move because, if they delay Kotagal’s nomination indefinitely, another Commissioner appointed by a Democratic President will vacate their seat – resulting in two victories that give conversative GOP appointees a majority vote at the agency.
So Republicans, in short, are using a page right out of the Trumpian playbook: Grab undue power by refusing to vote. It is how they took an extra seat at the U.S. Supreme Court and it is how they’re planning to take ideological control of the EEOC, too.
There’s no question about Kotagal’s qualifications. Though she is most well-known for her work on the inclusion rider – an effort to ensure equal opportunities for women and historically underrepresented people in the film industry (and made famous by Frances McDormand’s 2018 Oscar acceptance speech), she has an equally impressive record advocating for workers in other sectors, too. Her clients have included more than 69,000 female employees of Sterling Jewelers, one of the nation’s largest jewelry chains, in a nationwide Title VII gender discrimination and Equal Pay Act case, AT&T sales representatives who faced pregnancy discrimination on the job, and transgender Aetna patients who sued the insurer – and won a life-changing settlement expanding Aetna’s health-care coverage for gender-affirming surgery.
She is, to say the least, eminently qualified to serve. Republicans are simply trying to run out the clock to advance their own agenda by leaving one – and they’re likely to try to get two – key vacancies at the agency. Senator Schumer must make sure they aren’t allowed to get away with it.
Kotagal’s nomination is critical for ensuring workers have an advocate at the EEOC, and that President Biden is allowed to fill vacancies with nominees of his choosing. Giving her an up or down vote – just as Republicans insisted Amy Coney Barrett must have only weeks before an election, mind you – isn’t just the right thing to do. It’s a critically important thing to do for our country and the workers the EEOC stands with.
This year’s midterm elections showed that voters are wary of a right wing takeover of government. Democrats retained their Senate majority because the extreme views and tactics of some GOP obstructionists were at odds with the majority of the electorate. That, in turn, should give Senator Schumer all the reason he needs to immediately move forward with the discharge petition for Kotagal and schedule the yea-or-nay vote she deserves before the full Senate.
I hope you’ll join Public Justice in calling on the Majority Leader to do just that. You can reach out online here, or call Senator Schumer’s office at (202) 224-6542 and request that Kotagal be confirmed immediately – and that the Senate reject Republicans attempts to grab power at the EEOC by refusing to do their jobs.
Our country, and the workers who make it run day in and day out, need her working for them.