Kalpana Kotagal can vividly recall the first moment she felt the slap of racial discrimination. “I was probably 9 or 10 years old, definitely old enough to have a sense of race,” she says. At a now-defunct pizza place in Cincinnati in the 1980s, where she and her family were “decidedly brown,” they waited (and waited) in the vestibule while other parties were seated ahead of them.
What happened next would inspire Kotagal to join forces with Stacy Smith from the Annenberg Inclusion Initiative, and Fanshen Cox DiGiovanni of Pearl Street Films, who had been working for a few years around the idea of an inclusion rider, to craft it in 2016. It had a moment in the spotlight when Frances McDormand added those words to the end of her acceptance speech at the 90th annual Academy Awards.
“I remember very distinctly my parents’ discomfort and embarrassment and anger kind of mounting,” she explains. They understood what was happening, Kotagal recalls, and were trying to shield their kids from it. But she was old enough to pick up on that kind of attack on dignity and the feeling of powerlessness.
“It was small,” Kotagal admits, “in the big scope of the injustices that underrepresented groups have experienced or are currently experiencing in our country.” However, the moment gave her empathy to others who face discrimination of all kinds.
It would be one of a series of moments that would inform Kotagal as she went from being an advocate and organizer for underrepresented groups to eventually becoming an attorney and partner at Cohen Milstein specializing in civil rights and employment cases.
Early Seeds Of Activism
For instance, at just 11 years old, Kotagal attended Children’s International Summer Villages. The peace education organization brings kids from around the world together for camps focused on building understanding across cultural backgrounds and offers leadership development for youth around justice, sustainability, and peace. “That was a galvanizing moment for me, too,” she says, and she now serves on the organization’s board.
From there she helped to start an organization in middle school and high school that worked on local environmental issues in Cincinnati schools. “It was small potatoes,” Kotagal contends, but it gave her valuable insight into how upper-class environmental issues and the environmental issues of people living in urban areas are not necessarily the same thing.
“My worldview was evolving, and activism and service was part of it,” she says, but she credits her parents for seeding this urge to organize. “They encouraged my sister and me to think about the world we want to live in, and be active agents in making that change from the time we were kids.”
By the time she got to Stanford, she started bringing together her passion for environmental issues with social justice. “I came out of college with an economics and an environmental studies degree and went to work with Green Corps as an organizer,” she says. “By the time I went to law school, I had three years of professional organizing and many years of student organizing behind me, and a worldview that was informed by all of that,” says Kotagal.
Standing Up Against Powerful Interests
The path through law school was clear, says Kotagal: She wanted to be a class action litigator. “I had a really clear concern about power and balance in society, in particular why it felt like the political and policy process was often captured by more powerful interests, leading to bad outcomes that weren’t necessarily in the public’s interest,” she explains. Class action litigation seemed to be the legal analog of organizing to build collective power to make a broader social change, she explains.
As such, she’s represented a class of female sales employees in a Title VII and Equal Pay Act case against Sterling, one of the nation’s largest jewelry chains. Kotagal also represents transgender beneficiaries of federal health insurance who have challenged the denial of transition-related care as discriminatory.
So where does the inclusion rider come in? It actually functions differently than class action, as it focuses on one person’s star power to negotiate for more diverse and inclusive hiring both in the cast and on the crew of a production. Since the Oscars, a few A-listers have come forward to state that they’d be using it in future productions, including Black Panther star Michael B. Jordan, writer, and director Paul Feig, and actress Brie Larson. Ben Affleck and Matt Damon have come forward too, according to DiGiovanni who worked on the rider with Smith and Kotagal and currently serves as the head of outreach for Affleck and Damon’s production company.
“What appealed to me so much about the inclusion rider and what continues to appeal to me about it, is that while it relies upon star power,” says Kotagal, “the group that is intended to be benefited by the rider is not the stars, it turns on them using their power to change the face of the industry.”
Kotagal believes it’s really important at this moment to talk about workers who don’t have the kind of bargaining power that these stars have, and who are not in a position to be benefited by the inclusion rider. “I’m talking about independent contractors, domestic workers, home healthcare aids. They are the people who make our own work possible.” She cites Ai-jen Poo, head of the National Domestic Workers Alliance, who reflected on the invisible millions on a recent episode of the radio show Marketplace whose immigration status or wage and hour laws and discrimination laws don’t cover. “It’s interesting because they are invisible in some respects, but very visible in other respects,” she says. “Those are the people that I think we have an obligation to figure out how to lift up,” says Kotagal.
Change Will Take More Than Star Power
It’s going to take commitment on all sides to make a change, Kotagal believes. “There’s a legislative fix on some of these issues that Frances McDormand and Matt Damon and Ben Affleck, as powerful as they are, can’t individually affect,” she says. As for her role, Kotagal says she and her practice are committed to continuing to seek out injustices and represent those workers in litigation to seek redress. “We see that both as an important piece of getting justice for those people,” she adds, “but also as a crucial tool for corporate accountability and teaching corporate actors that you can’t get away with that kind of conduct.”
She’s making sure that the firm looks inward, too. As chair of the hiring and diversity committee, she sees how the profession is not as diverse as it could be, despite its workers’ intellectual understanding of the value of diversity in the workplace. But on the most personal level, Kotagal is working on changing things as well.
“My husband and I are raising two mixed race boys,” she explains, and they have made a commitment to raising them with an awareness of the privilege that comes from being male in this society. Alongside that, she says they are working to flip gender norms and stereotypes and thinking about what masculinity should look like, and also preparing them for what it means to be mixed race in America today. “I would say that I have multiple dimensions of this for me,” Kotagal contends,”the personal, the professional, and the political. Hopefully, they all align.”
Correction: A previous version of this article stated that Fanshen Cox DiGiovanni is at the Annenberg School, she is at Pearl Street Films. The headline has also been updated to reflect the contributions of the other women who worked on the inclusion rider with Kotagal.