And Now a Word With … EEOC Commissioner Kalpana Kotagal

The most recent addition to the Equal Employment Opportunity Commission has vast experience in DEIA issues, including co-authoring the Oscar ceremony-famous “Inclusion Rider” (more on that later). When Commissioner Kalpana Kotagal agreed to answer our questions, I wanted to know what she thought was the biggest obstacle holding back employers from meeting DEIA goals.

Her answer: “Misinformation about DEIA programs.”

Granted, Kotagal was referring specifically to the private sector when she answered, but it’s clear that most employers, including Federal agencies, fail to fully grasp the purpose and benefits of DEIA.

“What sometimes gets lost in the discussion is the fact that DEIA programs can often help agencies and other employers actually avoid liability for discrimination by removing barriers to equal opportunity. DEIA programs can also improve agencies’ ability to serve the American people and bolster efforts to attract and retain top talent. For these DEIA programs to succeed, it’s important that the people spearheading them have sufficient independence, resources, staffing, and visible support from the agency’s leadership,” she said.

Kotagal suggested agencies follow OPM’s recent guidance on Promising Practices for Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.

DG: A belated congratulations on the appointment. I know it can be a steep learning curve, particularly on the Federal sector side. Is there anything about the EEOC, whether it’s the processes or the people, that has surprised you, or been unexpected?

KK: Thank you, it’s been a whirlwind! As I’ve been settling in and traveling the country, I’ve been in awe of my colleagues at the EEOC. It’s no surprise that agency staff are extremely dedicated, recognizing the importance of the mission and the positive impact the agency has on people’s lives. Everyone I’ve met has also been a wealth of knowledge and expertise. Perhaps what’s been most surprising is how often I meet a new colleague and learn that they’ve been with the agency for 20, 30, or 40 years. The remarkable tenure of agency staff speaks to the welcoming environment and to the shared commitment to our work, and it makes the agency more effective and efficient.

DG: A few years back, the Elijah E. Cummings Federal Antidiscrimination Act made some key changes to the EEO process. Are agencies complying with this law — and has it had an impact?

KK: Yes, that’s right. The Elijah E. Cummings Federal Antidiscrimination Act of 2020 made important changes to agencies’ EEO processes. For example, under the law agencies are required to publish the number of final agency actions that result in a finding of discrimination; report to the EEOC whether any disciplinary action has been proposed and why; and note in an employee’s personnel record [any] adverse action for an act of discrimination.

The law also empowers the EEOC to refer matters to the Office of Special Counsel when agencies don’t take appropriate disciplinary action, so that the Office can consider pursuing such action under its authorities.

In 2022, the EEOC issued a report reviewing compliance with the law’s requirement that an EEO director report directly to the head of the agency. The EEOC found that in FY 2021, small agencies had the greatest levels of compliance, while mid-size, large, and cabinet-level agencies had mixed levels of success.

DG: Where do agencies need to improve the most in the EEO process?

KK: Retaliation is the most common complaint of discrimination in the Federal sector and the most common discrimination finding in Federal sector cases, so managers should be mindful to avoid punishing job applicants or employees for asserting their rights. Protected activity includes filing a complaint of discrimination, being a witness in an investigation or lawsuit, or communicating with an employer about discrimination. It’s also unlawful to retaliate against job applicants or employees for intervening to protect others or refusing to follow orders that would result in discrimination.

The EEOC will continue to work with Federal agencies to ensure compliance with regulations and provide technical assistance and trainings. The Federal government is the largest employer in the United States and should serve as a model employer on EEO issues.

DG: How effective is training in addressing harassment — both before a complaint has been filed and after a harassment finding has been reached by the EEOC?

KK: The EEOC has numerous resources, including a technical assistance document focused on Promising Practices for Preventing Harassment in the Federal Sector, that outline the EEOC’s requirements for Federal agencies’ anti-harassment training as well as best practices for making trainings effective. Anti-harassment training should not be a check-the-box exercise. Providing live, interactive training tailored to the audience is an effective strategy. While agencies have leeway in crafting their trainings, they should avoid an excessive focus on case law or legal definitions and instead use plain language and examples specific to the agency’s workforce.

Agencies should also ensure that training is clear about the distinction between the EEO process and the agency’s anti-harassment program. Other promising practices include explaining the range of consequences for engaging in harassing conduct and demonstrating that leadership is bought in to the work of ending workplace harassment and fostering equal employment opportunity workplaces. Agencies should also consider having a separate training for supervisors, managers, and other senior officials to both avoid a chilling effect among employees and ensure that senior leaders are aware of their responsibilities under the law.

[Editor’s note: FELTG offers customized programs to help agencies fulfill EEOC orders of compliance training. Our programs are specifically designed to meet essential training requirements laid out in the EEOC order or a Final Agency Decision. This training does more than check the box; it provides real examples and takeaways that make a substantial difference. Contact info@FELTG.com for more information.]

DG: We’ve heard from several agencies about an increase in complaints lodged against supervisors for actions that are, quite frankly, just a supervisor doing what he/she/they need to do, whether it’s assigning work or holding employees accountable. What advice can you give Federal supervisors?

KK: Holding employees accountable for poor performance is not in itself unlawful. However, supervisors must remember that they can’t take adverse action against an employee because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information, or because they filed a complaint of discrimination.

For example, supervisors can’t assign employees less favorable tasks or punish employees differently than others who engage in similar conduct because of a protected trait. Supervisors also can’t make assignment decisions based on stereotypes or assumptions about that person’s protected trait. Harassment also continues to be a challenge. The EEOC is working toward publishing final Enforcement Guidance on Harassment in the Workplace, which will serve as a resource for agencies and include detailed examples.

DG: I’m going to go back a few years now to 2018. What was your reaction when you heard Francis McDormand end her Oscar acceptance speech with the words “Inclusion Rider?” What kind of impact has the rider had on the film industry? And what lessons did you learn in that process that can be applied to more traditional workplaces, including that of the Federal government?

KK: Well, I was actually asleep when Frances McDormand mentioned the Inclusion Rider in her acceptance speech. I learned what had transpired early the next morning and was stunned both by her mention of the Inclusion Rider and by the attention that followed. The Inclusion Rider has been one of many innovative strategies that those working to advance inclusive storytelling and DEIA in film and television, and myriad other industries, have developed. I am proud to have been part of those efforts. Several studios and production companies have taken the Inclusion Rider templates we developed and tailored them for implementation across their production slates, and others have used the Inclusion Rider to facilitate more inclusive casting and hiring practices for the production of the Grammys and New York Fashion Week.

The Inclusion Rider is a ready tool that we offered at an important moment in our society’s discussions about the value of diversity, equity, inclusion, and accessibility in our workplaces, and in our storytelling. Fundamentally, the work I did with activists, actors, production companies, and studios was about improving recruitment and hiring practices by facilitating outreach to expand candidate pools, ensuring consideration of all qualified candidates, regardless of background, developing flexible benchmarks, and gathering data to address barriers to equal employment opportunity that existed for decades. Through the Inclusion Rider, we focused producers on inclusive hiring practices and challenged stereotypes in storytelling. As my co-author Fanshen Cox and I have previously reflected, that moment at the Oscars in 2018 really reflected a “seedling” of the work that has transpired in the years since to advance a more inclusive Hollywood.

[Editor’s note: Register for virtual training Equity in Hiring on April 24 from 11 am – 1 pm ET. It’s part of FELTG’s four-day Emerging Issues in Federal Employment Law event.]