In 2013, Black and Asian American employees at NASA filed a class complaint saying the agency’s performance review system gave them lower ratings than their white colleagues. Thirteen years later, the Equal Employment Opportunity Commission has thrown out the class and ruled for NASA. The plaintiffs’ lawyer says the case may now be over.
The complainants are mid-level managers and professionals, workers in federal pay grades 13 to 15. Ratings decide raises, bonuses and who gets promoted into leadership. The employees say NASA’s system left too much to subjective judgment, such as scores for communication and teamwork, and that Black employees paid for it.
It took nine years for an administrative judge to certify the class, which happened in 2022. In August, the commission’s Republican majority voted 2 to 1 to reverse that decision, and went further: it decided the case on the merits itself, without sending it back to the judge and without letting the parties file legal briefs, according to the complainants’ filing.
Michael Lieder, the employees’ attorney at Mehri & Skalet, says the commission rewrote the rules after the case was already underway. It added a class-certification requirement the EEOC had not imposed in 50 years, and it applied tougher standards for proving disparate impact, which follow Trump administration Justice Department positions. “They changed the rules on us in the middle of the lawsuit,” Lieder said in an interview with Federal News Network.
The complainants asked the commission to reconsider on Sept. 18, arguing it committed “flagrant distortions” of the facts and the law. They say they missed the usual 30-day deadline because the EEOC never told them it had decided. NASA is opposing the motion.
Commissioner Kalpana Kotagal, the commission’s lone Democrat, dissented. She said the decisions appeared designed to make it harder for federal employees to challenge systemic discrimination.
The EEOC’s own words suggest she may be right. The commission cited this case when it proposed a rule to end class actions in the federal sector and to strip federal workers of their right to a hearing before an administrative judge.
That reaches well past NASA. For Black federal employees, a class complaint is often the only way to challenge a pattern when no single employee can prove a manager’s motive. Take that tool away and every employee who was rated down has to fight alone, against the agency that signs the rating.
Lieder says that if the commission denies reconsideration, “the case is at an end,” because a federal court is unlikely to take up a discrimination claim this old. The commission has not said when it will rule on the motion or finalize its proposed rule. It should do neither: an agency whose job is to enforce the law against discrimination should not be the one rewriting it to protect an employer.
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