[Senate Hearing 117-397]
[From the U.S. Government Publishing Office]


                                                    S. Hrg. 117-397

                     NOMINATION OF KALPANA KOTAGAL
                      TO BE A MEMBER OF THE EQUAL
                   EMPLOYMENT OPPORTUNITY COMMISSION

=======================================================================

                                HEARING

                                OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                                   ON

EXAMINING THE NOMINATION OF KALPANA KOTAGAL, OF OHIO, TO BE A MEMBER OF 
              THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                               __________

                              May 10, 2022

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                                


        Available via the World Wide Web: http://www.govinfo.gov
        
        
                               __________

                                
                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-908 PDF                 WASHINGTON : 2023                    
          
-----------------------------------------------------------------------------------     
 
             COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                    PATTY MURRAY, Washington, Chair
BERNIE SANDERS (I), Vermont          RICHARD BURR, North Carolina, 
ROBERT P. CASEY, JR., Pennsylvania       Ranking Member
TAMMY BALDWIN, Wisconsin             RAND PAUL, M.D., Kentucky
CHRISTOPHER S. MURPHY, Connecticut   SUSAN M. COLLINS, Maine
TIM KAINE, Virginia                  BILL CASSIDY, M.D., Louisiana
MAGGIE HASSAN, New Hampshire         LISA MURKOWSKI, Alaska
TINA SMITH, Minnesota                MIKE BRAUN, Indiana
JACKY ROSEN, Nevada                  ROGER MARSHALL, M.D., Kansas
BEN RAY LUJAN, New Mexico            TIM SCOTT, South Carolina
JOHN HICKENLOOPER, Colorado          MITT ROMNEY, Utah
                                     TOMMY TUBERVILLE, Alabama
                                     JERRY MORAN, Kansas

                     Evan T. Schatz, Staff Director
               David P. Cleary, Republican Staff Director
                  John Righter, Deputy Staff Director
                           
                           
                           C O N T E N T S

                              ----------                              

                               STATEMENTS

                         TUESDAY, MAY 10, 2022

                                                                   Page

                           Committee Members

Murray, Hon. Patty, Chair, Committee on Health, Education, Labor, 
  and Pensions...................................................     1
Braun, Hon. Mike, a U.S. Senator from the State of Indiana.......     3
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  Introduction of Witness........................................     4

                                Witness

Kotagal, Kalpana, Cincinnati, OH.................................     5
    Prepared statement...........................................     6

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.
Murray, Hon. Patty:
    Letters in Support of the Kalpana Kotagal Nomination.........    22
Burr, Hon. Richard:
    Statement Opposing the Kalpana Kotagal Nomination............    49

 
                     NOMINATION OF KALPANA KOTAGAL
                      TO BE A MEMBER OF THE EQUAL
                   EMPLOYMENT OPPORTUNITY COMMISSION

                              ----------                              


                         Tuesday, May 10, 2022

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room 216, Hart Senate Office Building, Hon. Patty Murray, Chair 
of the Committee, presiding.
    Present: Senators Murray [presiding], Casey, Murphy, Kaine, 
Hassan, Smith, Rosen, Hickenlooper, Braun, Marshall, and Scott.
    Also present Senator Brown.

                  OPENING STATEMENT OF SENATOR MURRAY

    The Chair. Good morning. The Senate Health, Education, 
Labor, and Pensions Committee will please come to order. Today 
we are holding a hearing on the nomination of Kalpana Kotagal 
to be a member of the Equal Employment Opportunity Commission.
    I will have an opening statement followed by Senator Braun, 
who is sitting in today for Ranking Member Burr, and then 
Senator Brown will introduce our witness. After the nominee 
gives her testimony, Senators will each have 5 minutes for a 
round of questions.
    While we are unable to have this hearing fully open to the 
public or media for in-person attendance, live video, again, is 
available on our Committee website at help.senate.gov. And if 
anyone needs accommodations, including closed captioning, you 
can reach out to the Committee or the Office of Congressional 
Accessibility Services.
    We received Ms. Kotagal's formal nomination on April 5th, 
her Office of Government Ethics paperwork on April 15th, and 
her Committee paperwork on April 14th. Ms. Kotagal, I am 
pleased to welcome you and all of your family here today. We 
are very glad that you are joined today by your husband, Wyatt, 
your parents, Shashi and Uma, your sister Mira, and your 
children, Narayan and Kishan. Very nice to see all of you 
today.
    Thank you for coming. Now, while we have work to do to 
bring down prices and build an economy that works for working 
families, not just those at the top, we have made important 
strides recovering from the economic crisis this pandemic 
caused and getting people back to work safely.
    We have added a record breaking 8.3 million jobs since 
President Biden took office, and as we continue to build on 
that historic jobs recovery, families in Washington State and 
across the country are counting on us to make sure we are also 
building an economy that is stronger, fairer, and more 
inclusive, and the EEOC plays a critical role in doing just 
that.
    The EEOC protects the rights of workers who are the 
backbone of our economy and enforces our Nation's workplace 
discrimination and harassment laws. It holds employers 
accountable when they discriminate against workers or allow 
harassment to fester in the workplace.
    Workers deserve an EEOC that is ready to take on big 
challenges before it, from long standing issues like making 
sure women get the equal pay they deserve, combatting workplace 
sexual harassment, and ensuring all workers, including LGBTQ 
workers, workers with disabilities, pregnant workers, and 
workers of color are treated with dignity and respect in the 
workplace.
    Two other issues the pandemic has put a harsh spotlight on, 
like the need to do more to protect workers of Asian descent 
from discrimination and harassment, which is unfortunately on 
the rise. Bottom line, the EEOC needs strong, experienced 
leaders who have proven they know what it takes to protect 
workers' rights and ensure companies follow our laws. Ms. 
Kotagal is just the person for the job.
    As a leading civil rights and employment lawyer, Ms. 
Kotagal has gone to court again and again on behalf of workers 
who have been treated unfairly on the job. She has represented 
pregnant workers and new moms who were fired or disciplined 
because they had to miss work because of their pregnancy or 
because they were literally giving birth. She has gone to court 
on behalf of women wrongly denied the pay and promotions they 
earned.
    She has taken on employers who failed to pay their workers 
minimum wage and returned $10 million to thousands of poultry 
workers after they were cheated out of the pay they had earned. 
She quite literally put money back in workers' pockets where it 
belongs and has spent her career holding employers accountable 
and sticking up for workers when they need it most. She has 
also been a leading voice in the fight to stamp out 
discrimination and sexual harassment in the workplace at every 
turn in her career.
    Ms. Kotagal has been a champion for workers denied the pay, 
dignity, and respect that are their right, and I have no doubt 
that as a member of the EEOC, she will continue fighting to 
create better, fairer workplaces and an economy that works for 
everyone. I am pleased President Biden has sent a nominee who 
is so clearly qualified and committed to fairly enforcing our 
laws and protecting workers' rights.
    I look forward to supporting her nomination and working 
with my colleagues to confirm Ms. Kotagal, because with so much 
at stake for working families across the country, we need 
people like Ms. Kotagal on the EEOC to do the important work of 
closing the gender pay gap and ending other pay inequities, 
stamping out workplace harassment and discrimination, and 
protecting workers' rights.
    People in Washington State and across the country are 
struggling right now, especially with high prices at the 
grocery store and gas pump. Everyone on this Committee 
understands that. We are all hearing from families back home 
about it.
    We should all understand why supporting the EEOC's work, 
making sure people get the wages they have earned and deserve, 
and confirming Ms. Kotagal is so important because no one 
should lose wages or job opportunities to discrimination.
    No one should have to put up with harassment at work just 
so they can put food on their table. So I hope everyone on this 
Committee will join me in supporting Ms. Kotagal and getting 
her confirmed to the EEOC without delay.
    Now before I turn it over to Senator Braun for his opening 
remarks, I seek unanimous consent to put in the record 11 
letters in support of Ms. Kotagal's nomination, including from 
more than 53 organizations representing workers and fighting 
for civil rights and equality in the workplace, and CEOs and 
opposing counsels from Ms. Kotagal's litigation that support 
her nomination because they respect her professionalism and her 
ability to see all sides of issues. So ordered.

    [The information referred to can be found on page 22 in 
Additional Material:]
    The Chair. With that, I will turn it over to Senator Braun 
for his opening remarks.

                   OPENING STATEMENT OF SENATOR BRAUN

    Senator Braun. Thank you, Madam Chair. I think it is an 
important hearing today because I believe equality of 
opportunity is a bedrock of the American dream. However, I 
think there is now a movement that seeks to use the Federal 
Government to end equality of opportunity and maybe replace it 
with equality of outcome.
    I think those are two totally different things, goals. 
Americans must be guaranteed a level playing field to succeed 
economically on their own merits. But it is not the job of the 
Federal Government to ensure economic outcomes. That gets to be 
very difficult. The Equal Employment Opportunity Commission is 
at the center of this conversation. If confirmed, Ms. Kotagal, 
you will be charged with enforcing our Nation's employment 
discrimination laws.
    I hope that you will commit to ensuring all Americans have 
equal access to opportunity rather than supporting an agenda of 
discrimination under the banner of equity. The Trump 
administration made many changes to the EEOC aimed at 
unleashing economic opportunities for all Americans.
    The Trump EEOC also enacted transparency and accountability 
measures for the Commission, and those two things transparency 
and accountability, have got to be part and parcel of anything 
we do here.
    Some have called for these changes to be reversed. For 
example, ending provisions requiring the Commission to vote to 
approve litigation and to post these votes publicly online. 
This change gave the authority to commence litigation against 
employers back to the Commissioners, as Congress intended, 
instead of concentrating that power in the General Counsel.
    To me, that is foreboding. There has also been talk of 
limiting the information provided to employers during 
conciliation and changing the updated compliance manual on 
religious discrimination. Finally, the Chair of the Commission 
has also made clear that she will seek to reinstate burdensome 
collection of pay data from employers in an attempt to identify 
pay discrimination.
    However, the reality is that this data provides no context 
for the wages such as job experience, education, or skill 
level. This collection will force employers to shoulder 
additional costs and require significant changes to their H.R. 
systems for data that has not even been proven to be useful.
    As a lifelong business owner and one from Main Street, you 
have got to always keep in mind much of what we do here is 
aimed at large corporations, where that represents by a number 
of entities, a small percentage of the business community 
throughout the country. And you have got to be careful, 
whatever we do, that it doesn't put a heavy regulatory burden 
on the part of the economy for Main Street that functions 
pretty well.
    It is like my business, treat their employees like family 
in general don't run into these issues. I do know that the vast 
majority of employers care deeply about their employees. 
Business owners have every incentive to do so.
    If you want to build and grow long term, you have to create 
a safe and fair organization for all employees, regardless of 
their race, religion, sex, disability, or age. I look forward 
to learning more about your background, your thoughts on these 
issues, and the future of the EEOC. Thank you, Madam Chair.
    The Chair. Thank you, Senator Braun. We now welcome Senator 
Brown to our Committee to introduce Ms. Kotagal. Welcome.



                   STATEMENT OF SENATOR BROWN

    Senator Brown. Thank you, Madam Chair, Senator Braun. Thank 
you--thanks for holding this hearing, allowing me the 
opportunity to introduce Ms. Kalpana Kotagal, native daughter 
of Cincinnati, Ohio.
    Ms. Kotagal is President Biden's nominee, as we know, to be 
a member of the Equal Employment Opportunity Commission. She is 
a partner at Cohen Milstein for the past 15 years. She has 
served as a plaintiff's attorney, bringing class action cases 
on behalf of workers, many of whom have faced discrimination on 
the job. She earned her B.S. and A.B. with honors from Stanford 
and her J.D. cum laude from the University of Pennsylvania Law 
School.
    I understand she is most, perhaps most famous in certain 
circles for helping to make the entertainment industry a more 
diverse place to her work on inclusion writers. That is 
important, admirable, and necessary work.
    But as The Washington Post recently put it, most of the 
people she fights for don't wear ball gowns and diamonds. They 
are banana pickers, chicken blockers, hourly wage workers, 
disabled postal carriers, and nurses. Ms. Kotagal spent her 
career fighting for overtime pay for poultry plant workers. 
Higher wages for nurses.
    Pay equity and fair opportunities for career advancement 
for women working at Wal-Mart. It is a career that embodies the 
dignity of work, the idea that hard work should pay off for 
everyone, that all workers, all workers should have the 
opportunity to support their families and build careers no 
matter who they are, no matter their background, no matter what 
kind of work they do.
    When I asked Ms. Kotagal a few days ago in my office why 
workers, she told me how her Indian immigrant parents who 
raised her in Cincinnati and who work with some of the most 
vulnerable people in our health system in Ohio.
    She talked about how, despite working to make our 
communities healthier, they were sometimes--they were 
sometimes, her family, on the receiving end of discrimination 
themselves. They raised her to both embody the American dream 
and to work to make our Country a better place for all 
Americans.
    I am thankful personally that the Kotagal family chose to 
come to Ohio and thankful that Kalpana chose a career fighting 
on behalf of American workers. I urge this Committee to give 
her nomination full consideration and a vote to move her 
nomination forward to the EEOC.
    Thank you, Madam Chair.
    The Chair. Thank you, Senator Brown. Ms. Kotagal, thank you 
for being here today. You may proceed with your testimony.

   STATEMENT OF KALPANA KOTAGAL TO BE A MEMBER OF THE EQUAL 
               EMPLOYMENT OPPORTUNITY COMMISSION

    Ms. Kotagal. Chair Murray, Ranking Member Burr, Members of 
the Committee, it is an honor to appear before you today as you 
consider my nomination to be a Commissioner of the Equal 
Employment Opportunity Commission. I would sincerely like to 
thank President Biden and Vice President Harris for the 
nomination.
    I am joined here today by my parents, Dr. Shashi Kant and 
Uma Kotagal, my sister, Dr. Meera Kotagal, my husband of 12 
years, Wyatt King, and our two children, Kishan and Narayan. I 
want to express my deepest gratitude to each of them. I carry 
their love and support with me every single day. I have long 
felt that my life and my family's story are quintessentially 
the American story.
    My parents both immigrated to the United States in the 
early 1970's. Each came to this country from India with just $8 
in their pockets to pursue professional opportunities in their 
own chosen fields of medicine. After completing their training 
in Detroit and Chicago, they settled in Cincinnati, Ohio, where 
they raised my sister and me and set out to capitalize on the 
opportunities that America has provided so many new arrivals 
through the generations.
    Through their hard work and dedication, they have had a 
tremendous positive impact on their adopted community. And in 
the process, they have provided enduring examples of what it 
means to live lives devoted to service.
    I will always be grateful to my parents for giving my 
sister and me every opportunity, and for teaching us what can 
be achieved through persistence and a commitment to helping 
others. I strive to live up to their example every day. As the 
child of immigrants in a family that has truly lived the 
American dream, I am blessed.
    I know what is possible in this great Country, and I know 
that it is due in no small part to our Nation's deep commitment 
to equal opportunity. In the workplace, that means ensuring 
that all workers are judged on their merits and their ability 
to do the job.
    This national commitment, which is made manifest in the 
work of the EEOC, is integral to ensuring that every American 
worker has the chance to realize their ultimate potential. As a 
civil rights and employment lawyer, I have devoted my 
professional life to these values. In my 16 years as a 
litigator, I have worked to uphold statutes that the EEOC is 
charged with enforcing.
    I have filed charges, participated in investigations, and 
advocated on behalf of my clients before the EEOC, on behalf of 
veterans with disabilities, pregnant workers, survivors of 
workplace, race and gender harassment, and others. I have seen 
firsthand the Commission's commitment to excellence and to most 
effectively utilize resources. Throughout my career, I have 
found the business community to be an indispensable ally in the 
cause of realizing equal opportunity workplaces.
    In my own practice, I have advised employers in internal 
investigations and negotiated with major organizations. The 
vast majority of American businesses comply with the law. 
Employers, with the help of their employees, are often the most 
knowledgeable about what their workplaces need to ensure equal 
opportunity. The goal of equal opportunity in the workplace is 
a lofty one, but an essential one.
    Workplaces that are free from discrimination benefit more 
than just their employees. They also benefit those employees' 
families and communities and contribute directly to an 
innovative and dynamic American economy. In short, 
discrimination free workplaces benefit all of us. If confirmed, 
I plan on listening and working collaboratively and learning 
from all stakeholders, employers, the business community, and 
advocates for workers.
    I would consider the views of my fellow Commissioners, EEOC 
staff, Members of Congress, practitioners, academics, and 
stakeholders alike. The American workplace is dynamic, complex, 
and multifaceted, and it takes a variety of perspectives to 
identify and pursue creative strategies as we work toward 
workplaces free from discrimination.
    I have taken thoughtful approaches to cutting edge 
litigation and advised clients, finding common ground to forge 
collaborative outcomes. Throughout my career, I have 
represented people who have sought to make their workplaces 
more equitable, to be treated with dignity and respect, to be 
valued and assessed, to paraphrase Dr. King, by the content of 
their character and the quality of their work.
    I have seen firsthand how critical the work of the EEOC is 
in realizing our national commitment to ensuring equal 
opportunity for everyone in this great country. It is truly an 
honor to be considered for the opportunity to be a part of the 
EEOC's important mission. I thank the Committee for your time, 
and I look forward to your questions.

    [The prepared statement of Ms. Kotagal follows:]
                 prepared statement of kalpana kotagal
    Chair Murray, Ranking Member Burr, and Members of the Committee, it 
is an honor to appear before you today as you consider my nomination to 
be a Commissioner of the Equal Employment Opportunity Commission.

    I would like to sincerely thank President Biden and Vice President 
Harris for this nomination.

    I am joined here today by my parents--Drs. Shashi Kant and Uma 
Kotagal, my sister Dr. Meera Kotagal, my husband of 12 years, Wyatt 
King and our two children, Kishan and Narayan. I want to express my 
deepest gratitude to each of them. I carry their love and support with 
me every single day.

    I have long felt that my life, and my family's story, are 
quintessentially the American story. My parents both immigrated to the 
United States in the early 1970's. Each came to this Country from 
India--arriving with just $8 in their pockets--to pursue professional 
opportunities in their own chosen field of medicine. After completing 
their training in Detroit and Chicago, they settled in Cincinnati, 
Ohio, where they raised my sister and I and set out to capitalize on 
the opportunities that America has provided to so many new arrivals 
through the generations.

    Through their hard work and dedication, they have had a tremendous 
positive impact on their adopted community. In the process, they have 
provided enduring examples of what it means to live lives devoted to 
service. I will always be grateful to my parents for giving my sister 
and me every opportunity and for teaching us what can be achieved 
through persistence and a commitment to helping others. I strive to 
live up to their example every day.

    As the child of immigrants, in a family that has truly lived the 
American dream, I am blessed. I know what is possible in this great 
country, and I know that it is due in no small part to our Nation's 
deep commitment to equal opportunity. In the workplace, that means 
ensuring that all workers are judged on their merits and their ability 
to do the job. This national commitment which is made manifest in the 
work of the EEOC, is integral to ensuring that every American worker 
has a chance to realize their ultimate potential.

    As a civil rights and employment lawyer, I have devoted my 
professional life to these values. In my 16 years as a litigator, I 
have worked to uphold statutes that the EEOC is charged with enforcing. 
I have filed charges, participated in investigations, and advocated on 
behalf of my clients before the EEOC, on behalf of veterans with 
disabilities, pregnant workers, survivors of workplace race and gender 
harassment, and others. I have seen first-hand the Commission's 
commitment to excellence and to most effectively utilize resources.

    Throughout my career, I have found the business community to be an 
indispensable ally in the cause of realizing equal opportunity 
workplaces. In my own practice, I have advised employers in internal 
investigations and negotiated with major organizations. The vast 
majority of American businesses comply with the law. Employers, with 
the help of their employees, are often the most knowledgeable about 
what their workplaces need to ensure equal opportunity.

    The goal of equal opportunity in the workplace is a lofty one, but 
an essential one. Workplaces that are free from discrimination benefit 
more than just their employees; they also benefit those employees' 
families and communities and contribute directly to an innovative and 
dynamic American economy. In short, discrimination-free workplaces 
benefit all of us.

    If confirmed, I plan on listening and working collaboratively, and 
learning from all stakeholders, employers, the business community, and 
advocates for workers. I would consider the views of my fellow 
Commissioners, EEOC staff, Members of Congress, practitioners and 
academics, and stakeholders alike. The American workplace is dynamic, 
complex, and multifaceted, and it takes a variety of perspectives to 
identify and pursue creative strategies as we work toward workplaces 
free from discrimination. I have taken thoughtful approaches to 
cutting-edge litigation and advised clients, finding common ground to 
forge collaborative outcomes.

    Throughout my career, I have represented people who have sought to 
make their workplaces more equitable, to be treated with dignity and 
respect, to be valued and assessed, to paraphrase Dr. King, by the 
content of their character and the quality of their work. I have seen 
firsthand how critical the work of the EEOC is in realizing our 
national commitment to ensuring equal opportunity for everyone in our 
great country. It is truly an honor to be considered for the 
opportunity to be part of the EEOC's important mission.

    I thank the Committee for your time and welcome your questions.
                                 ______
                                 
    The Chair. Thank you very much. We will now begin around a 
5-minute questions. I ask my colleagues to please keep track of 
your clock, stay within those 5 minutes.
    The EEOC was established by the Civil Rights Act in 1964 
for a very important reason, to administer and enforce the laws 
that protect against workplace discrimination and to ensure all 
workers have equal access to employment. Yet far too many 
workers still face discrimination in their workplace.
    I hear from many women, workers of color, workers with 
disabilities, and others about the discrimination and 
retaliation they face in the workplace. And I know we can do 
more to ensure quality and opportunity for everyone.
    You have worked on behalf of many workers who have fought 
against discrimination. Based on your experience, if you are 
confirmed, what will your top priorities be at the EEOC to help 
workers across the country?
    Ms. Kotagal. Thank you, Senator. If I am so fortunate as to 
be confirmed, I would look forward to working with the Chair 
and other Commissioners to determine where my experience and my 
skills and my background could be most effectively deployed in 
service of the important mission of the EEOC.
    Obviously, as a litigator, I have a great deal of 
background in those issues and I view litigation as a crucial 
part of what the EEOC does in enforcing our workplace 
nondiscrimination laws.
    As you noted, I have worked on behalf of a number of 
different workers and different types of backgrounds and would 
bring that experience to bear with respect to pregnancy 
discrimination, discrimination on behalf of disabled people, 
discrimination with respect to the wage gap and pregnancy, and 
also discrimination on the basis of gender identity.
    These are all areas that are tremendously important areas 
in which I have had personal experience. And I would look 
forward to bringing all of that experience to bear, that 
knowledge to bear to advance the work of the EEOC--to advance 
the work of the EEOC with respect to Title VII, the Equal Pay 
Act, Americans with Disabilities Act, etcetera.
    The Chair. Thank you, Ms. Kotagal, it has been years since 
the Me Too movement first began, but we still have a lot of 
work ahead of us because workers continue to face harassment in 
their workplace. In December 2018, I actually released a report 
that showed the pervasiveness of harassment and related 
retaliation in the workplace, particularly for women.
    I made a series of recommendations to better prevent and 
address harassment in the workplace. Since then, I introduced, 
and did so again this Congress actually, the Be Heard in the 
Workplace Act to expand protections for workers and ensure they 
get the accountability and justice that they deserve.
    But I also believe there is much the EEOC can do under its 
existing authority to further protect workers from harassment. 
If you are confirmed, I hope you look carefully at the Be Heard 
report and our bill and work with your colleagues to take an 
aggressive stance so that we can finally make progress in 
rooting out harassment and discrimination. Will you work with 
me on that?
    Ms. Kotagal. Absolutely will, Senator Murray.
    The Chair. Thank you, Ms. Kotagal, the wage gap remains a 
huge issue, with too many women workers still earning less than 
they deserve, and many women of color and women with 
disabilities face especially stark wage gaps for doing the same 
work as other employees.
    Those wage gaps actually mean that women lose thousands of 
dollars every year in their wages, and that means very real 
challenges for them saving for retirement, supporting their 
families, affording childcare, health care, and just being able 
to make ends meet. I am continuing, of course, to try and pass 
the Paycheck Fairness Act.
    It is a commonsense bill to address the loopholes that 
allow pay discrimination and protect workers from retaliation 
when they talk about their pay. But can you tell us how 
addressing the wage gap would help workers, including the 
clients you have worked with throughout your career?
    Ms. Kotagal. As you say, Senator Murray, despite the fact 
that it has been decades since Congress passed Title VII and 
the Equal Pay Act, the gender wage gap remains a pernicious 
problem, a stubborn problem. I think that is due in part to the 
fact that workers often aren't aware of what their pay is 
relative to others.
    I think these are incredibly important issues and they have 
a disproportionate impact on women of color and their ability 
to support their families and their households, and a 
disproportionate effect on low wage workers.
    Resolving issues and continuing to close the gender wage 
gap will put money into the pockets of families, of workers, 
and continue to advance the work of the recovery. I think that 
is incredibly important work. I see the EEOC's role there in 
enforcing Title VII and the Equal Pay Act as tremendously 
important.
    The Chair. Thank you very much.
    Senator Braun.
    Senator Braun. Thank you, Madam Chair. In my opening 
statement, I stressed transparency and accountability. To me, 
those have to be the underpinnings of anything that works to 
where it is going to be responsible to someone.
    I am worried that in what I have read in terms of what 
might happen, and I am referring to what occurred under the 
Trump administration, the EEOC created transparency and 
accountability by requiring Commissioners to vote on whether or 
not to commence litigation and by posting those votes online.
    There is a new discussion out there that if you are 
confirmed, the EEOC will put the authority to commence 
litigation in the hands of the General Counsel. And more 
alarming than that, no longer require public voting. Simple 
question, will you commit to keeping the measures in place that 
require Commissioners to review and approve the majority of 
litigation and then post these votes online?
    Ms. Kotagal. Senator, I think transparency is an incredibly 
important value, and I look forward to learning more from my 
fellow Commissioners, if I am so fortunate as to be confirmed.
    I understand that the Commission has had a track record of 
delegating some litigation authority to the General Counsel, 
and that there are certain areas, including novel areas of law 
and areas that would involve substantial outlay of the 
Commission's resources with respect to litigation, where the 
Commissioners do play an important role in approving 
litigation.
    Senator Braun. You said you definitely support transparency 
and I assume accountability as well. Are you willing now to say 
that you would keep that? Because it is hard for me to imagine 
how there could be any benefit to taking that away.
    It shouldn't be just because it occurred under a different 
administration, because I have never really observed much that 
works well in the long run that doesn't keep as much 
transparency at play as possible.
    Ms. Kotagal. I agree transparency is an important value. It 
is an area that I would be absolutely willing to learn more 
about, if I am so fortunate as to be confirmed, including from 
your office and your staff, Senator.
    Senator Braun. Very good. We will continue that 
conversation down the road. These measures, when it comes to 
small business especially, I am concerned that you need to keep 
in mind, and I said that in my opening statement as well, that 
whatever you do--I harken back to 2008, 2009 Dodd-Frank and the 
number of community banks and small banks that had none of the 
behavior that the largest banks had and they took us into that 
free-fall, but they ended up with the consequences.
    In many cases not having the administrative staff or the 
ability to spread the overhead that rules and regulations came 
out of, and it was dispensed with kind of a one size fits all. 
I am concerned that whatever happens in terms of some of the 
things that are being talked about, that it will accentuate 
that burden on small business. Do you think it is valid to just 
differentiate between where most of these problems might be?
    Similar to in the budget hearing that I was part of last 
week, when Amazon was being talked about, 150 percent turnover 
rate and accident rate way above the norm. That is one thing 
that is not typical of most small businesses, especially ones 
that have been run by families for a long time.
    Is that a fair distinction to make? Or do you think 
whatever happens should be one size fits all, regardless of 
your size and your behavior?
    Ms. Kotagal. It has certainly been my experience that most 
employers are working to get it right for their employees, that 
most employers are interested in following the law. I think 
that was certainly something you and I chatted about last week, 
and I think that is an incredibly important--certainly 
consistent with my experience.
    I think it is important to ensure that all workers are 
protected from discrimination in the workplace and that the 
approach to those issues must be consistent across workplaces. 
Having said that, I think that there may be different tools 
that should be considered, and I would be very interested in 
hearing all perspectives with respect to any issues as they may 
relate to business and to workers.
    Senator Braun. Thank you.
    The Chair. Thank you.
    Senator Kaine.
    Senator Kaine. Thank you, Chair Murray. I am on four 
committees, and I have been to a lot of nomination hearings, 
but I am not sure that I have seen a nominee who is as well-
suited for the position as you are, Ms. Katanga, and I just 
applaud the career that you have built and how well it would 
lead to this particular post. Two questions.
    First, I want to pick up a little bit on what the Chair 
asked about wage gap but come at it from a slightly different 
angle. Talk about low wage workers. I think we really need some 
strong enforcement in these areas and a lot of low wage workers 
are disproportionately women and people of color.
    How would you plan, should you be confirmed, to ensure that 
the EEOC is devoting sufficient resources to addressing 
discrimination in industries where low wage workers 
predominate?
    Ms. Kotagal. It is a tremendously important issue. As you 
note, that has a disproportionate impact, discrimination, in 
low wage worker areas--has a disproportionate impact on women 
of color. And the way that ripples through their families and 
their communities, I think, is an area that, if resolved, would 
pay tremendous dividends for those families and for our 
communities.
    I think it is worth looking at the sectors where low wage 
workers are most heavily involved and considering how more 
enforcement could be brought to bear in those areas. I 
certainly would be interested in looking into that issue more 
closely, if I am so fortunate as to be confirmed.
    As you know, I have represented low wage workers in 
different types of litigation, some of which is under the 
statutes that are enforced by the EEOC, some of which comes 
under the Wage and Hour statutes.
    But I think the way in which they are disproportionately 
vulnerable, both from a pay perspective, but also to harassment 
and the way those different types of discrimination can build 
on one another, is something of significance for our economy.
    Senator Kaine. Thank you for that. I want to ask a question 
about disability and in particular disability for the 
potentially millions of people who are dealing with long COVID. 
COVID-19 pandemic is being considered a mass disabling event. A 
recent white paper from a patient advocacy organization 
indicates that between 7 and 14 million Americans are expected 
to experience disabling long.
    Those estimates still vary quite a bit because the research 
is still really digging into the severity of long COVID and the 
number of people that are affected. Another recent analysis 
found that 1.1 million Americans currently are out of work due 
to disabling long COVID.
    The EEOC has issued guidance clarifying under what 
circumstances COVID-19 could be considered a disability under 
the A and also the Rehabilitation Act. If confirmed, how would 
you advance opportunity in the workplace for workers with 
disabilities, but particularly focusing on those who might be 
experiencing long COVID?
    Ms. Kotagal. Senator, it seems to me that the evolving 
landscape of long COVID is something that we need to 
understand, both from the perspective of workers and ensure 
that we are providing clear guidance to employers as that 
landscape evolves.
    I think the other thing that seems clear is that the mass 
disabling event that has been COVID has had a tremendous 
impact, both from a physical perspective, but also from a 
mental health perspective. And understanding both physical 
disabilities and mental health disabilities as they arise from 
COVID I think is going to be really important to getting folks 
back to work.
    I would want, if I am so fortunate as to be confirmed, to 
see where the EEOC is with respect to these issues, what work 
is being done, both on the enforcement side to ensure that 
workplaces are not discriminating against workers with 
disabilities, as well as providing guidance to employers about 
how to use the interactive process to get folks back to work.
    Senator Kaine. Thank you. And just to conclude, one of 
the--one of the things that has happened during COVID is not 
only have people suffered by COVID and they still are, but also 
we have learned some things about our work environment that 
have expanded the ability, for example, to offer 
accommodations.
    I didn't have any staffers teleworking until March 2020, 
and we ended up learning, wow, we can do a lot of great work 
via telework. Many people weren't accessing health care or 
education content via a tele-connection prior to March 2020, 
but now have learned that they can. So the problem is serious, 
but there has also been some learning in the last 2 years that 
may broaden our ability to offer accommodations to workers with 
disabilities, not just from long COVID, but other workers as 
well.
    Ms. Kotagal. I could not agree more. I think our 
understanding of what constitutes a reasonable accommodation 
for certain types of workplaces has expanded, as you say. I 
have litigated from my home office for the last two and a half 
years arguing class cert hearings from my desk on my third 
floor in a way that we never would have dreamed of two and half 
years ago.
    Senator Kaine. Thank you, Chair Murray.
    The Chair. Thank you.
    Senator Casey.
    Senator Casey. Thank you, Chair Murray. I want to start by 
thanking Ms. Kotagal for her willingness to put herself forward 
for this nomination. And we are grateful for the work that you 
have done already in your time as a litigator, as an advocate 
to combat gender discrimination in workplaces and to bring 
those actions on behalf of people that often would not have a 
voice otherwise or would not have their day in court.
    I am grateful for that and also grateful for your service 
with regard to the work that Penn Law School does, especially 
your work as Chair of the Office of Equity and Inclusion on the 
Alumni Advisory Board. And of course, being a graduate of Penn 
Law School is another noteworthy part of your record and I am 
grateful for that as well as a Senator representing 
Philadelphia and all of Pennsylvania.
    I wanted to maybe raise three issues with you, if I can do 
so in the time I have. One is on sub-minimum wage. Another is a 
bill that I have worked on, on pregnancy discrimination. And 
third, to ask you about older workers.
    But let me start with sub-minimum wage. We know now that in 
the Nation we have got just about 1,000 employers across the 
country that are permitted to pay their employees with 
disabilities a wage below the minimum wage. Fortunately, that 
number is down from where it was a number of years ago, but it 
is still too high.
    There have been a lot of efforts to phaseout sub-minimum 
wage, and a lot of employers have done it on their own. It is 
an issue I have worked on for a lot of years. Some of these 
employees that are paid a sub-minimum wage are paid as little 
as $1 an hour or $0.50 an hour.
    Many of these employees with disabilities work side by side 
with employees who don't have a disability and earn at least a 
minimum wage. But of course, the people with disabilities are 
below that in these work settings.
    Now, the Biden administration has established the goal of 
eliminating the use of sub-minimum wage payments to people with 
disabilities. That is probably the first time that has been a 
goal of an administration, and that is good, but we still have 
a good bit of work to do.
    Should our national policy permit employers to pay for 
people with disabilities less than a minimum wage or less than 
the prevailing wage?
    Ms. Kotagal. It is important, from my perspective, for 
workers to be paid fairly for their work. People are entitled 
to be paid fairly. And if there are workers who are disabled, 
who are working alongside folks who are not disabled, and are 
receiving different wages, that strikes me as deeply 
problematic.
    I think it is also important to work to bring disabled 
workers into the workplace and figure out creative strategies 
to ensure, as we are talking with Senator Kaine about, to 
ensure that disabled workers are at work or back at work. I 
understand that this is primarily an issue for the Department 
of Labor, but I think my primary perspective is that workers 
should be paid fairly for their work.
    Senator Casey. Well, I hope that, were you to be confirmed, 
that would be a priority for you. This is a matter that has 
been around way too long. We candidly, the U.S. Congress hasn't 
done enough.
    Fortunately, now we have a bill in the Senate, imagine this 
it is bipartisan, that we are trying to pass. But I hope that 
the EEOC would be as concerned as I am about this issue. Let me 
move to the second issue, pregnancy discrimination. This has 
been rampant.
    The 1978 legislation did not do nearly enough to prevent 
this kind of discrimination. Fortunately, we have a standard 
that came later than the pregnancy law of 1978, the Americans 
with Disabilities Act, which set a reasonable accommodation 
standard which should have been observed in the pregnancy 
context in worksites but hasn't.
    We have got bipartisan legislation Senator Cassidy and I 
are leading with strong support and guidance and hard work from 
Chair Murray, along with Ranking Member Burr. So we have got a 
lot of good bipartisan support.
    I guess I wanted to ask you about your work on behalf of 
pregnant workers and how it will inform your efforts to protect 
workers from this kind of workplace discrimination?
    Ms. Kotagal. I have been so fortunate, so honored to 
represent workers who were terminated as a result of absences 
from work that they had to take because of their pregnancies.
    They were not accommodated, or allegations are that they 
were not accommodated to the same extent as other workers 
without pregnancies who had to seek absences for whatever 
reason. And, it is my view certainly it has been true in my own 
personal life, my two beautiful kids behind me, that I have 
been able to have my children recover, bond with them, and 
return to work.
    I don't think that workers should have to choose between 
their work and their families. I think addressing pregnancy 
discrimination in the workplace is of central importance and, 
overlaps with other issues that we have discussed, including 
the gender wage gap. I think it is a tremendously important 
issue.
    Senator Casey. Well, thanks very much. I will send you a 
question for the record on older workers--discrimination 
against older workers. Thanks, Chair Murray.
    Ms. Kotagal. Thank you, Senator.
    The Chair. Thank you.
    Senator Rosen.
    Senator Rosen. Thank you, Chair Murray, Ranking Member 
Braun. And thank you to Ms. Kotagal for being here today, for 
your willingness to serve. Appreciate that. I want to get right 
into it and talk about gender bias in STEM.
    As a former computer programmer who began my career in a 
male dominated field and co-chair of the Women in STEM Caucus, 
I understand the challenges women face in pursuing and 
succeeding in STEM careers, particularly when women still make 
up only 28 percent of the STEM workforce.
    According to a recent article published by students in the 
University of Nevada Reno's Women in Science and Engineering 
Cohort, nearly two-thirds of women and more than three-quarters 
of Black women in STEM reported experiencing what is known as 
the prove it again gender bias, where men are hired or offered 
advanced opportunities based on their potential, while women 
are hired or promoted based on their current performance or 
past experience, past success.
    Ms. Kotagal, if confirmed, how will you address this issue, 
particularly as it impacts pay disparity and discrimination? 
And how will you--how might you approach cases before the EEOC 
where allegations of gender based pay and promotion 
disparities, particularly in these historically dominated--male 
dominated fields?
    Ms. Kotagal. Thank you, Senator. I come from a family of 
physicians, of scientists. My mother and my sister are both 
physicians and so have learned about the challenges that women 
face in STEM in my family's own life. I think that many of the 
challenges for women in STEM come down to issues of 
stereotyping.
    I think there are important opportunities to do education 
and outreach both to workers and to employers about what does 
it mean to identify the skills that it actually takes to do 
these jobs and to ensure that advancement is anchored in those 
actual skills, as opposed to, as you say, the sort of 
obligation to prove it again.
    I think there is an important role for enforcement here as 
well to identify areas where women are facing challenges in 
STEM employers and to look for opportunities to address those 
discrimination issues through litigation or conciliation.
    Senator Rosen. I look forward to working with you on that. 
I want to move on to addressing anti-Asian hate and violence in 
the workplace. Another huge issue facing us, particularly over 
the course of the pandemic. We have seen a rise in crimes and 
reports of bias motivated harassment against Asian-American, 
Pacific Islanders, our AAPI communities, our AAPI owned 
businesses.
    They have also been targeted for discrimination, including 
in Nevada, which is home to some of the--one of the fastest 
growing AAPI communities in the country and more than 21,000 
Asian owned businesses. And so, if confirmed, how do you think 
you can help address this increase in anti-Asian workplace 
violence?
    Ms. Kotagal. This is a tremendously serious issue. I think 
it requires attention to enforcement with respect to instances 
of workplace violence that impact Asian-American communities. I 
also think that there is a really important role for outreach 
in non-English languages here to ensure that the EEOC is able 
to reach the communities that are most impacted, whether they 
are English speaking or not.
    I would want to, if I am so fortunate as to be confirmed, 
look closely at that issue and work with advocates in the AAPI 
community on what they believe they need to get at the root of 
these problems.
    Senator Rosen. Thank you. I appreciate that, too. And in 
the minute I have left, we will just move on. Speaking of the 
pandemic and how it relates to anti-Asian hate and other 
issues, we have long COVID related disabilities, again 
affecting people in the workplace. More than 81 million 
Americans have been diagnosed with COVID-19.
    Many more cases, of course, not gone uncounted. And most 
estimates suggest that between 10 and 30 percent of confirmed 
COVID patients might experience long COVID symptoms after 
recovering, even if they really weren't very sick in the first 
place. So this problem is going to continue to threaten or 
impair many Americans' ability to work, and we are still trying 
to learn how to deal with this.
    Does long COVID, will it be considered a disability under 
the ADA if they substantially limit somebody's physical 
ability? And so when we think about the ADA, how should we 
handle--how do you think we might handle the increase in cases 
as we begin to define long COVID?
    Ms. Kotagal. It is an issue that I think is still evolving, 
as you say. I see there being sort of two areas that require, 
that would require--will require the Commission's attention. 
One is to ensure that workers returning to the workplace, 
facing long COVID, understand what their rights are to seek 
accommodations as needed.
    Second, as I have said, I believe that most employers are 
working to get it right but ensuring that employers know how to 
engage with workers in the interactive process and what 
constitutes reasonable accommodations, I think are really 
important pieces of this. These are certainly, I would say, 
ongoing problems in need of creative strategies and need of 
creative solutions.
    I think there are probably also opportunities to work 
across agencies on this issue, as I think this issue will, will 
bear on access to technology and a variety of other things.
    Senator Rosen. Yes. Thank you so much. My time is up, Madam 
Chair.
    The Chair. Thank you.
    Senator Smith.
    Senator Smith. Thank you, Madam Chair, and welcome to the 
Committee and welcome to your family as well. It was nice to 
have a chance to meet all of you, and I am just very grateful 
for your willingness to serve our Country in this way. I would 
like to start out with a question about LGBTQ+ issues and 
discrimination.
    The EEOC has correctly taken the position that Title VII of 
the Civil Rights Act prohibits employment discrimination on the 
basis of sexual orientation and gender identity. And the 
Supreme Court upheld this decision in Bostock v. Clayton County 
in 2020.
    Ms. Kotagal, could you talk to us about how you will use 
your position to protect the rights of LGBTQ+ Americans in the 
workplace?
    Ms. Kotagal. All American workers deserve to work in 
workplaces that are free from discrimination, and that includes 
LGBTQ+ workers. I think this is an important and evolving area 
of the law and important area for enforcement. I am eager to 
understand what the Commission's work in this area has been to 
this point.
    Obviously, Vice Chair Samuels has done a lot of work on 
these issues, and I am interested to learn how I can be most 
supportive of continued efforts to enforce the law. I have, as 
you may know, worked on behalf of transgender people to secure 
equal access to transition related health care.
    I think there are creative opportunities here, 
opportunities for collaborative outcomes, and I have been part 
of some of that work. I would look forward to bringing all of 
that to bear if I am so fortunate as to be confirmed.
    Senator Smith. Thank you. I appreciate that. Last year, as 
a result of an EEOC lawsuit, the food processing company JBS 
Swift, which has a plant in Worthington, Minnesota, settled a 
lawsuit with a claim of up to $5.5 million for 300 workers 
based on religious discrimination.
    The EEOC asserted that JBS's Greeley, Colorado plant, and 
at that plant the company discriminated against employees 
because they were Muslim, Somali immigrants, and Black. Some of 
the incidents included denying Muslim employees the ability to 
pray and harassment when they tried to pray during their 
schedule breaks or bathroom breaks, among other serious 
discrimination.
    Ms. Kotagal, the JBS Foods Company is valued at 
approximately $16.7 billion. And so while significant in some 
ways, a $5.5 million settlement to workers is a drop in the 
bucket compared to what the company brings in, in its overall 
valuation.
    I wonder if you could just talk a bit about how you would 
approach this type of litigation around religious 
discrimination and how you see establishing settlement amounts.
    Ms. Kotagal. Yes, thank you for that. I am not tremendously 
familiar with the JBS case, although I have certainly heard of 
it. So I don't know the details in the facts. I do--I will say 
this. I think that protection for workers of faith is 
established profoundly in Title VII, and it is an important set 
of rights to protect.
    I think that the process, in my experience as a litigator, 
of valuing cases turns on data, it turns on analysis, it turns 
on an understanding of the workforce and the harms that they 
suffer. And undertaking that analysis, as you might imagine, is 
a very case specific and fact specific process.
    I think it is important--it has been my experience that it 
is important to bring those various resources to bear, to do 
that kind of analysis, to establish what the worth of the cases 
and the harm to the workers who suffer discrimination, if in 
fact there has been a cause finding to that effect. I think it 
is important to undertake that analysis.
    I don't know enough about how the EEOC undertakes that 
process, as I am obviously not there yet, but if I am so 
fortunate as to be confirmed, as a litigator, that is an area 
that I would be interested in looking into.
    Senator Smith. Thank you very much. But would you agree 
that these settlements are--they have a role in--it is like 
trying to get the company to not do it again.
    Ms. Kotagal. Yes, yes. Settlement can be very important to 
deterring behavior. I think it plays a number of different 
roles, right. That dollar amount, one, is to address the harm 
done to workers in that situation.
    It is also to deter future behavior both on the part of 
that employer and, in particular in sort of major industries 
that are closely watched on the part of other potential 
leaders, in that industry. A settlement and settlement amounts, 
resolution of litigation, can be watched closely by others.
    Senator Smith. It is both correcting a wrong as well as 
deterring behavior, not only from the company that has 
committed the offense, but other companies who are watching, 
and particularly in food processing and this particular meat 
processing. I mean, whether it is a high level of concentration 
in this field and the companies, I think, watch each other very 
closely. Right. Thank you very much. Thank you, Madam Chair.
    The Chair. Thank you.
    Senator Hickenlooper.
    Senator Hickenlooper. Thank you, Madam Chair. And thank 
you, Ms. Kotagal, for your public service already and for being 
willing to step into this oven of challenges, but also 
opportunities. Let me start small businesses, obviously. I come 
from a small business background. They are the background of 
our economy.
    Often times, though, they don't have the human resources 
staff or the labor attorneys that could provide real 
assistance. How can the EEOC help small businesses comply with 
their obligations under the various anti-discrimination laws?
    Ms. Kotagal. It has been my experience that the 
overwhelming number of businesses, including small businesses, 
are working to get it right for their employers. I think that 
the role, one of the central roles of the EEOC with respect to 
employers like that, is to ensure that they have clear 
guidance.
    As you say, they may not have the kind of robust 
infrastructure of counsel and H.R. to help them navigate the 
landscape of the equal employment laws. And in those 
circumstances, it is really important for the EEOC to provide 
clarity for employers so that those who are working to get it 
right for their workers have the information they need to do 
so.
    Senator Hickenlooper. Great. As someone who is on that 
side, I think most small businesses do struggle to get it 
right. And sometimes the layer upon layer which Congress has 
created of regulatory framework makes that difficult.
    As you said in your testimony, employers and employees 
often know best what they should do or what really will work in 
a workplace to ensure equal opportunity. How can the EEOC, and 
you and the EEOC, build better trust with the business 
community, and that I think what--I think it is fair to say a 
common fight against discrimination.
    Ms. Kotagal. I think that is right. I think that listening, 
willingness to listen, to hear all perspectives, to solicit 
input from all perspectives is really important.
    Ultimately the path to discrimination free workplaces, if 
it is to be enduring, must benefit from the input of all 
stakeholders. That includes businesses as well as employers and 
workers, academics and practitioners, others who understand the 
way that the law works.
    I think to get it right, we need to really be collaborative 
in service of that shared goal. That is a perspective that I 
have adopted in my own practice so far and would absolutely 
bring that commitment, if I am so fortunate to be confirmed.
    Senator Hickenlooper. I love that answer. I think one of 
the people I appointed in different life when I was Governor, 
that we appointed a woman to the Public Utilities Commission 
who said in her interview that she never changed--she never 
changed the mind of anyone about something important by telling 
them why they were wrong and why she was right, that it was 
only through listening.
    I think that is the powerful truth. My staff has been 
reaching out to the Denver field office. Their caseloads are, I 
think like around the country, are growing larger, really 
becoming overwhelming just because of lack of staff, it is hard 
to hire, but also budget constraints. Government doesn't have 
the flexibility to offer raises in the timelines needed 
sometimes.
    How important is the field staff to helping the EEOC stop 
unlawful employment discrimination? I know what the answer is 
going to be to that. But then on top of that, how can we 
address the staffing issues and reducing the amount of time it 
takes to process these complaints?
    Ms. Kotagal. Field staff are important. They are the 
frontline. They are in direct contact with workers who are in 
need of the services of the Commission. I think having adequate 
staff in the field, having adequate resources, is directly 
connected to the Commission's ability to enforce the workplace 
nondiscrimination laws.
    I think those are tremendously important issues. What can 
be done? Certainly this is something I would want to look much 
more closely at, learn from staff in the field offices, learn 
from my fellow Commissioners and the Chair, and hear what is 
being done.
    Again, a challenge in search of creative solutions. I think 
we have to bring all of that creativity to bear, to most 
effectively utilize the budget, the resources that are given to 
the Commission to do its work and to ensure that staff have 
what they need.
    Senator Hickenlooper. I think creative solutions and 
innovations come from listening to staff by the listening 
occurring by good leaders. So I am looking forward to seeing 
you as one of those good. And I fully expect great leaders in 
EEOC. I yield back to the Chair.
    The Chair. Thank you.
    Senator Braun.
    Senator Braun. Thank you, Madam Chair. In earlier 
conversation, we talked about accountability and transparency. 
Also, I think being impartial and objective would be important 
as well. And I think a lot of what you can expect out of 
someone would be based upon, what organizations you have been a 
part of, in this day and age of social media where you might 
have put an opinion out there.
    I have got a question on when you were part of the Advisory 
Council for the People's Parity Project, this group led some 
campaigns against former Trump officials and against law firms 
that represented the Trump campaign or any Republican allies.
    Do you think those businesses, anybody associated with 
them, or anything similar to that, that might have been part of 
your point of view or your membership organizations prior to 
this, can they expect a fair process at the EEOC given that 
track record?
    Ms. Kotagal. They absolutely can expect a fair process from 
me, Senator. My work, my involvement with the People's Parity 
Project has been with respect to creating equal opportunity in 
the legal profession to ensure that folks have an opportunity 
from underrepresented backgrounds to have the same kind of 
opportunity that I have been so fortunate to have.
    That has been the extent of my involvement with the 
People's Party Project. I think the letters of support that are 
in the record and my reputation as a lawyer and a litigator are 
that I hear from all sides. I am interested in learning and 
will bring--absolutely bring that commitment to bear.
    I recognize that if I am so fortunate as to be confirmed, 
my role will be different as a Commissioner of the Equal 
Employment Opportunity. My responsibility will be to enforce 
the law. And I value that opportunity.
    Senator Braun. That is one thing. And then the other thing 
in this day and age, you can make your point of view heard. 
Now, all of us do it now and then, and sometimes it works, 
sometimes it doesn't. I want to read a couple retweets and then 
tell me how engaging in that manner would, again, give us 
confidence that you are not pushing a certain agenda and once 
you get, on this new task.
    Terry Gerstein, Director of the State and Local Enforcement 
Project in Harvard Law School, she was previously Labor Bureau 
Chief in the New York State Attorney's Office, she criticized 
employers who advocate against unionization and characterized 
the judge who struck down CDC's mask mandate as unqualified. 
You retweeted her.
    Melissa Harris Perry, a podcaster who linked to a story 
that contained misinformation on a Border Patrol Agent incident 
when there was that picture we have all seen where it looked 
like he was whipping folks coming across the border. That was 
proven not to be true, yet you did retweet it.
    Did you ever make a statement that countered that? And 
regardless, we all have our point of view. Do you think that 
puts in peril that objectivity and impartiality?
    Ms. Kotagal. I would say as an initial matter, I retweet 
things for lots of different reasons. It doesn't necessarily 
mean that I agree with the position.
    I go back to what I said initially, which is that I bring a 
full commitment to this opportunity to enforce the law, to hear 
from all sides, from all perspectives. I bring a commitment to 
collaboration, to hearing the point of view of those I may have 
previously disagreed with in service of enforcing the law. I am 
flexible and open to learning.
    Senator Braun. Transparency, accountability, objectivity 
and impartiality, I am glad you believe in all that. Thank you.
    The Chair. Senator Casey.
    Senator Casey. Thanks very much. Ms. Kotagal, let me go 
back to the question of discrimination in the workplace. I 
mentioned that is an ongoing problem, as you know. The good 
news is we also, on this issue, have some bipartisan agreement. 
It all centers around making changes that will provide a remedy 
for a Supreme Court case that goes back a ways on the burden of 
proof.
    We now know that because of that decision, that older 
adults face a higher burden of proof when making a 
discrimination claim. And because of that decision, it 
undermined, weakened the age discrimination in employment or 
the so-called ADEA, and sent what I think is a damaging and 
negative message with regard to employees by sending a message 
to employers that says basically that some discrimination based 
upon age is okay.
    That is the reason why we have bipartisan support. Senator 
Grassley and I introduced the Protecting Older Workers Against 
Discrimination Act. We have bipartisan support from Democrats 
and Republicans on this bill. And so my question is, how would 
you ensure that older adults are not facing discrimination in 
the workplace and in hiring decisions?
    Ms. Kotagal. Senator Casey, I think the trends in our 
economy make clear that this issue of age discrimination is one 
that is increased in importance and increasing in importance. 
And I think it is an important part of our recovery from the 
COVID pandemic. I think these issues are tremendously 
important.
    I also think that they show up in complicated and different 
ways, including discrimination against older women in a way 
that may be different than discrimination against older men. 
And then I think also the sort of the emphasis on the role of 
technology in our economy and the way in which older workers 
may fare worse in technological workforces from a 
discrimination perspective.
    Certainly, if I am so fortunate as to be confirmed, I would 
welcome any enforcement tools that Congress sees fit to provide 
to the Commission. I think these are important areas for 
enforcement, looking for trends in areas that these issues are 
showing up most substantially is something that I would be very 
interested in working on, if I am so fortunate to make it to 
the Commission.
    Senator Casey. Great. Thanks very much. Thanks, Chair 
Murray.
    Ms. Kotagal. Thanks, Senator.
    The Chair. Thank you. That will conclude our hearing. And I 
want to thank all of our fellow Committee Members, Ms. Kotagal, 
for today's thoughtful discussion about the importance of this 
nomination and the EEOC's critical role in protecting workers' 
rights and in building an economy that is stronger and fairer 
and more inclusive.
    For any Senators who wish to ask additional questions, 
questions for the record will be due to my staff by May 11th, 5 
p.m. The Committee will next meet at 10 a.m. on Wednesday, May 
18th in Hart room 216 for a hearing on cybersecurity in the 
health and education sectors.
    The Committee is adjourned.

                          ADDITIONAL MATERIAL

          letters in support of the kalpana kotagal nomination
[GRAPHIC] [TIFF OMITTED] T8908.001

[GRAPHIC] [TIFF OMITTED] T8908.002

[GRAPHIC] [TIFF OMITTED] T8908.003

[GRAPHIC] [TIFF OMITTED] T8908.004

[GRAPHIC] [TIFF OMITTED] T8908.005

[GRAPHIC] [TIFF OMITTED] T8908.006

[GRAPHIC] [TIFF OMITTED] T8908.007

[GRAPHIC] [TIFF OMITTED] T8908.008

[GRAPHIC] [TIFF OMITTED] T8908.009

[GRAPHIC] [TIFF OMITTED] T8908.010

[GRAPHIC] [TIFF OMITTED] T8908.011

[GRAPHIC] [TIFF OMITTED] T8908.012

[GRAPHIC] [TIFF OMITTED] T8908.013

[GRAPHIC] [TIFF OMITTED] T8908.014

[GRAPHIC] [TIFF OMITTED] T8908.015

[GRAPHIC] [TIFF OMITTED] T8908.016

[GRAPHIC] [TIFF OMITTED] T8908.017

[GRAPHIC] [TIFF OMITTED] T8908.018

[GRAPHIC] [TIFF OMITTED] T8908.019

[GRAPHIC] [TIFF OMITTED] T8908.020

[GRAPHIC] [TIFF OMITTED] T8908.021

[GRAPHIC] [TIFF OMITTED] T8908.022

[GRAPHIC] [TIFF OMITTED] T8908.023

[GRAPHIC] [TIFF OMITTED] T8908.024

[GRAPHIC] [TIFF OMITTED] T8908.025

[GRAPHIC] [TIFF OMITTED] T8908.026

[GRAPHIC] [TIFF OMITTED] T8908.027

statement of senator richard burr in opposition to the kalpana kotagal 
                               nomination
    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.
                                 ______
                                 
    [Whereupon, at 11:06 a.m., the hearing was adjourned.]

                                  [all]