Kalpana Kotagal wants to bring the radical activism she honed working with the radical left in Hollywood to the Equal Employment Opportunity Commission.
Kalpana Kotagal is a radical leftist who wants to use the enourmous influence of the Equal Employment Opportunity Commission to promote a radical Hollywood agenda that is out of step with mainstream values.
Kotagal Created the Radical Social Justice "Hollywood Inclusion Rider”
Ms. Kotagal has become well known as a champion of the inclusion rider, a contract provision made famous in Francis McDormand’s 2018 Oscars acceptance speech.. A template of the inclusion rider, requires the hiring of females of color for off-screen positions and supporting roles. The rider requires the Director and Casting Director to “audition at least one female and one person from any other under-represented group for all supporting roles” including “engaging in the good faith consideration of casting a female in a role scripted for a man or one whose gender is unspecified.”
Under-represented groups are defined as people “who identify themselves as females people of color, disabled, Lesbian Gay Bisexual or Queer, or having a combination of these attributes.”
The template also implores the Director and Casting Director to “select qualified members of under-represented groups for supporting roles in a manner that matches the expected demographics of the film’s setting, with the Director and Casting Director to “rely upon state-by-state demographics to determine representational percentages” relying “upon nationwide demographics where state-by-state data is not available.”
The model language also imposed a reporting requirement on the studio. Following auditions and casting, the studio was mandated to provide a variety of information to the contracting parties. This information included the total number of individuals who auditioned for supporting roles or off-screen positions, as well as the total number who identified themselves as a member of an under-represented group. The studio would also be required to furnish data concerning the number of females and individuals from under-represented groups hired for off-screen and supporting roles.
This sets up a situation where activist groups could shake down studios for contributions -similar to Jesse Jackson’s famous race-based shake downs if studios did not comply withteh inclusion dictates. Compliance would be determined “by analyzing the demographics of characters on the project”, with the studio making a contribution “to establish and endow a scholarship fund for filmmakers from under-represented backgrounds” if it is found they fail “in good faith” to conform to the edicts of the inclusion rider.
A reimagined inclusion rider was also issued by Kalpana Kotagal with additional language and policy guidelines that, to the minds of its creators, “brings together civil rights, racial justice, and legal expertise”. Newly added provisions also delineate how studios are to collect, measure and analyze application and hiring data, and implement “accountability measures to continue to support progress even where a company falls short of its goals.” The language would seem to once again rely on statistical analysis and a certain quota level of representation.
A Radical Record as an Attorney
Following the conclusion of her clerkship with the U.S. Court of Appeals for the Ninth Circuit in 2006, Ms. Kotagal has practiced as a litigator for Cohen Milstein, a plaintiff’s side employment and civil rights firm. Ms. Kotagal serves as Co-Chair of the firm’s Civil Rights and Employment Practice Group and of the firm’s Hiring and Diversity Committee. Throughout her tenure at Cohen Milstein, Ms. Kotagal has specialized in class-action litigation, particularly representing women and the LGBT community in employment and civil rights actions relating to Title VII, the Equal Pay Act, the ADA, the Family and Medical Leave Act, as well as other wage and hour issues.
Cases Litigated
Kalpana Kotagal has litigated a number of high-profile cases throughout her tenure at Cohen Milstein being a go-to firm for left-wing groups and constituencies.
Center for Reproductive Rights v. Department of Health and Human Services: In 2019, Ms. Kotagal served as lead attorney representing the Center for Reproductive Rights (“the Center”) in a lawsuit seeking to compel the Health and Human Services Department’s (HHS) compliance with the Freedom of Information (FOIA).
The case involved two FOIA requests the Center for Reproductive Rights (“the Center”) submitted seeking budget and staffing details for HHS’s Office of Civil Rights’s (OCR) Conscience and Religious Freedom Division (CRFD). The CRFD was created in 2018 by the Trump Administration to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” Ms. Kotagal’s firm claimed that “[h]istorically . . . only an extremely small fraction of the complaints received by the OCR are related to religious and moral refusal issues.” The first FOIA request sought detail on the CRFD’s supposed “reprioritization of funds”, particularly why funding for CRFD was increased while overall funding for OCR decreased. OCR claimed the funds were necessary to hire additional employees. The second FOIA request sought to uncover financial illegalities and improprieties. OCR, as the agency responsible for enforcing HIPAA’s privacy provisions, can collect funds obtained through HIPAA enforcement actions, but can only use those funds for securing health data privacy. The Center’s second FOIA request was aimed at discovering whether CRFD was illegally using HIPAA settlements to fund the CRFD, as opposed to health data privacy. The Center used FY2019 and FY2020 budget justifications that supposedly “included the expenditure of settlement funds from unidentified enforcement actions” as a pretext for the request.
The complaint filed in federal court asserted the Center’s concern “with how HHS’s Office for Civil Rights distributes its funding and staffs its operations”. The Center asserted it has a right to inspect OCR’s, and by extension CRFD’s, 2019 and 2020 budget justifications. The Center claimed HHS failed to render a determination on the Center’s FOIA requests, including any responsive records, within 20 business days, as required by law. As part of the relief demanded, the Center ordered HHS “to conduct a search that is reasonably likely to lead to the discovery of any and all records responsive to Plaintiff’s FOIA requests” by a date certain. The case docket details a number of errors made by Cohen Milstein in their representation of the Center, including incorrect headings, captions and case numbers in court filings and invalid attorney signatures. The last action on the case is a joint status report entered by HHS.
Dukes v. Wal-Mart Stores: Ms. Kotagal represented Wal-Mart employees in a case addressing standards for class certification. The class Ms. Kotagal represented comprised of over 1.5 million women employees claiming sex and pay discrimination who had been employed at roughly 3,400 stores across the country. Ms. Kotagal presumably believed such a large class, spread over multiple stores with different management, met commonality, typicality, numerosity, and adequacy requirements of class certification.
The U.S. Supreme Court held, in a unanimous 2011 opinion, that the class was improperly certified. Justice Scalia wrote that in order to satisfy the commonality requirement of class certification, “multiple claims must depend upon a common contention of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” The Court held that –as plaintiffs were suing for millions of employment decisions made at once given the unprecedented size of the class- without some glue, or commonality, holding together the reasons for those adverse employment outcomes, it is impossible to determine “that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.”
Agreement with Aetna to Cover Breast Augmentation Surgery for Trans Individuals: In January 2021, Kalpana Kotagal partnered with the Transgender Legal Defense and Education Fund and four women who were denied coverage for breast augmentation surgery, which Aetna previously deemed cosmetic. All parties entered into a collaborative pre-litigation agreement in which Aetna assented to expand its healthcare coverage of gender-affirming surgeries to include breast augmentation for qualifying transgender women. The revised policy recognized breast augmentation as a medically necessary procedure that will be covered for transgender women “who demonstrate persistent gender dysphoria, completion of one year of feminizing hormone therapy and a referral from a qualified medical professional.” Kalpana Kotagal hailed the agreement as “transformative” and signaling “the kind of industrywide effort that is needed to bring greater equity to the provision of health care.”
Online Left Wing Activist
Kotagal has been active online retweet and promoting some of the most divisive voices online. Whether it is Nikole Hannah-Jones author of the widely discredited 1619 project or Ibram Kendi whoe decried Barack Obama’s election to the presidency for furthering the “myth” of a postracial America, Kotagal has been in lock-step with the Critical Race Theory zealots on the left.
Kalpana has also retweeted her support of “woke monopolies”:
On border security and immigration, Kalpana is a hyper-leftist in favor of open borders hostial to the police. Kalpana retweeted a tweet by Melissa Harris-Perry, a leftist podcaster who linked to a story that contained misinformation on two Border Patrol agents, alleging they “whipped” Haitian migrants attempting to cross the border. The story has long since been debunked, with the agents merely shifting their weight to control their horses and avoid injuries to the migrants. The falsehood was allowed to gain traction though, resulting in both Border patrol agents being placed on leave. An investigation later cleared both Border patrol agents of wrongdoing.
Kalpana has also applauded the nomination of Jennifer Sung to the United States Court of Appeals to the Ninth Circuit. During Brett Kavanaugh’s confirmation process to the Supreme Court, Jennifer Sung signed an incendiary letter along with other Yale Law School alumni claiming that Jude Kavanaugh, based on his opinions as D.C. Circuit judge, was “an intellectually and morally bankrupt ideologue” and asserting that “people will die if he is confirmed”.
Kotagal also avidly supported the nomination of Kristen Clarke to be Assistant Attorney General for Civil Rights in the Department of Justice. Kristen Clarke has supported defund the police non-profits and special interest groups in the past. Kristen Clarke wrote an op-ed in Newsweek entitled “I Prosecuted Police Killings. De-Fund the Police-But Be Strategic.” While in law school, Kristen Clarke wrote an editorial for the Harvard Crimson in which she asserted that “melanin endows blacks with greater mental, physical and spiritual abilities-something which cannot be measured based on Eurocentric standards.” The Crimson subsequently ran an editorial denouncing her. National Review has also identified a number of other disturbing controversies in Clarke’s past, including inviting anti-Semitic writer Tony Martin, author of The Jewish Onslaught, to speak on campus whilst a student at Harvard.
