civil rights – Law Ivy

Beltway Buzz, May 30, 2025

The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.

DOL to Rescind Biden-era ESG Rule. In a status report filed this week with the U.S. Court of Appeals for the Fifth Circuit, the U.S. Department of Labor (DOL) stated that it will no longer defend a legal challenge to the Biden administration’s 2022 ESG (environmental, social, and governance) rule (formally, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights”). Instead, the administration will pursue notice-and-comment rulemaking to rescind the regulation. The pending rulemaking will be the latest regulatory back-and-forth on this issue, as the DOL in 2020 finalized a regulation that limited the abilities of Employee Retirement Income Security Act (ERISA) plan fiduciaries to consider investment factors that “promote non-pecuniary benefits or objectives.” In turn, the 2022 Biden-era rule instituted an “all things being equal” standard that allows plan fiduciaries to consider such factors as “tiebreakers” in investing decisions. There is no timetable for the proposed rule, but the spring regulatory agenda—expected sometime in June or July of this year—should provide some clues.
USCIS Nominee Wants Restrictions on OPT. Last week, the U.S. Senate Judiciary Committee held a hearing on the nomination of Joseph Edlow to serve as director of U.S. Citizenship and Immigration Services (USCIS). In response to a question from Senator Mike Lee (R-UT) regarding optional practical training (OPT), a program that provides F-1 students with up to three years of work authorization after graduation, Edlow responded with the following:
What I want to see would be essentially a regulatory and sub-regulatory program that would allow us to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.

The statement clearly provides insight not just into the future of OPT, but also on the types of employment-based immigration policies that USCIS will pursue in the future. The committee has not yet voted on Edlow’s nomination.
Consulates to Pause Student Visa Interviews. According to media reports, the U.S. Department of State has instructed U.S. consulates to refrain from scheduling new interviews for applicants seeking visas to study in the United States in preparation for new social media vetting protocols. The State Department will reportedly be issuing guidance as to what such vetting will entail. The increased scrutiny of foreign students’ social media activities is likely rooted in President Donald Trump’s executive order, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” which instructs the secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence to ensure “that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible.”
House Committee Examines DEI on College Campuses. The House Committee on Education and the Workforce’s Subcommittee on Higher Education and Workforce Development held a hearing last week entitled “Restoring Excellence: The Case Against DEI.” The hearing primarily focused on fallout from the Supreme Court of the United States’ 2023 ruling prohibiting the use of affirmative action in college admissions, including alleged ongoing discrimination in the college admissions process. Witnesses and lawmakers also examined college accreditation standards and medical school curricula, among other topics. The Dismantle DEI Act, introduced in 2024 by then-senator J.D. Vance, was not discussed.
Republican Lawmakers Seek Input on Transparency Reforms for Union Members. Chair of the House Committee on Education and the Workforce Tim Walberg (R-MI), along with Representative Rick Allen (R-GA), who chairs the Subcommittee on Health, Employment, Labor, and Pensions, sent an open letter to stakeholders soliciting feedback on potential revisions to the Labor-Management Reporting and Disclosure Act (LMRDA) “to inform Congress how it can reform the LMRDA to ensure labor organizations adhere to the highest standards of responsibility and ethical conduct.” The letter is divided into the following issue area categories:

Strengthening Member Governance and Voting Rights (e.g., “Should a union be required to hold a secret ballot vote of membership to ratify a collective bargaining agreement or authorize a strike?” And, “What information should a union be required to share with membership during contract negotiations and before a strike authorization?”)
Fiscal Transparency and Fiduciary Duty (e.g., “How can Congress clarify or strengthen fiduciary responsibilities of union officers?”)
Political Expenditures and Member Consent (e.g., “What reforms would give members more direct control over the portion of their dues used for lobbying, campaign contributions, or ballot-measure advocacy?”)
Digital Disclosure and Data Accessibility
Enforcement, Compliance Assistance, and Whistleblower Protections (e.g., “Do current criminal and civil penalties under the LMRDA adequately deter embezzlement, vote rigging, and false reporting? If not, how should they be updated?” And, “Should Congress establish a private right of action or a more robust whistleblower protection program to assist members with reporting wrongdoing?”)

The letter requests that all stakeholder feedback be submitted by July 22, 2025. The Buzz expects that this information will eventually lead to the introduction of legislation amending the LMRDA.
Labor Secretary Outlines Priorities on Capitol Hill. As part of the fiscal year (FY) 2026 appropriations process, Secretary of Labor Lori Chavez-DeRemer testified last week before the Senate Subcommittee on Labor, Health and Human Services, Education, and Related Agencies.
RIP, Harrison Tyler. Harrison Ruffin Tyler died on May 25, 2025, at the age of ninety-six. A chemical engineer and historical preservationist, Tyler was, quite amazingly, the grandson of our tenth president, John Tyler, who served as our chief executive from 1841–1845. How could someone who passed away this week have a grandfather born in 1790, just one year after ratification of the U.S. Constitution? Well, it helps that John Tyler fathered more children—fifteen—than any other president. It also helps that one of those children—Lyon Gardiner Tyler—was born to John Tyler’s second wife (Julia Gardiner Tyler) in 1853, when the former president was sixty-three years old. Like his father, Lyon Gardiner also married twice, and his second wife, Sue Ruffin, was thirty-five years his junior. Ruffin gave birth to Harrison Ruffin Tyler in 1928, when Lyon Tyler was seventy-five years old.

Government Consultation on the Introduction of Mandatory Ethnicity and Disability Pay Gap Reporting Now Open

The UK government has launched a consultation on introducing mandatory ethnicity and disability pay gap reporting for certain employers. The consultation closes on 30 June 2025. This consultation applies to ‘large employers’ and ‘large public bodies’ who are defined are those with 250 or more employees. The responses to this consultation will be used to inform the government’s drafting of the proposed Equality (Race and Disability) Bill and ensure that the legislation gives employers a clear framework on what is required of them.
Key proposals
Large employers have been required to report their gender pay gap data since 2017 which the Government says has led to greater transparency for employers and employees. The Government plans to use a similar reporting framework for ethnicity and disability pay gap reporting, meaning that all employers with 250 or more employees will need to report any ethnicity and disability pay gaps amongst their workforces.
Employers will be required to use data from a ‘snapshot date’ of 5 April each year and report their gaps within 12 months i.e., by 4 April the following year. Employers will report their data online, in a similar way to how gender pay gaps are reported. The Equality and Human Rights Commission, which currently enforces gender pay gap reporting, be empowered to enforce ethnicity and disability pay gap reporting, too.
Employers will report ethnicity and disability pay gaps on the same measures used for gender pay gap reporting:

mean differences in average hourly pay;
median differences in average hourly pay;
pay quarters – the percentage of employees in four equally-sized groups, ranked from highest to lowest hourly pay;
mean differences in bonus pay;
median differences in bonus pay; and
the percentage of employees receiving bonus pay.

In addition to the above, the Government will also require employers to report on the overall breakdown of their workforce by ethnicity and disability and the percentage of employees who did not disclose their personal data on their ethnicity and disability.
The Government is also seeking views on whether employers should have to produce “action plans” for ethnicity and disability pay gaps (a similar proposal for gender pay gap “action plans” is currently included in the Employment Rights Bill). This would provide employers with an opportunity to explain the reasons for any pay gaps and the steps they are taking to address them.
Ethnicity Pay Gap Reporting
In relation to ethnicity pay gap reporting specifically, the Government has proposed employees self-report their ethnicity (with an option to opt out of answering; employees will not be legally required to disclose this information). Those who do wish to disclose their ethnicity should select their ethnicity from the 18 classifications used in the Government Statistical Service ethnicity harmonised standard that was used for the 2021 Census.
In order to report on ethnic pay gaps, the government has proposed that the minimum threshold should be 10 employees in any ethnic group being analysed in terms of pay. If there are fewer than 10 employees in any of the classifications, employers should combine ethnic groups together, following the guidance on ethnicity data from the Office for National Statistics to ensure groupings are as comparable as possible. Where there are smaller numbers of employees in different ethnic groups, the Government has advised that employers report a “binary classification”, for example, reporting the comparison between the largest ethnic group in the organisation and all other groups combined.
The Government is also seeking views on whether large public bodies such as universities should report on ethnicity pay difference by grade or salary bands and data relating to recruitment, retention, and progression by ethnicity.
Disability Pay Gap Reporting
The government proposes using the Equality Act 2010 definition of ‘disability’ as the basis of identifying disabled employees. The Government also proposes to make employers responsible for collecting data on disability in accordance with that definition, however, as with ethnicity pay gap reporting, employees will self-report (or can opt out of reporting) their disability status.
The Government has also proposed a binary approach to disability pay gap calculations. All disabled employees will be grouped together regardless of their disability and employers will be required to compare disabled employees with non-disabled employees. Employers will not be required to collect and publish data about different impairment types.
There should be a minimum of 10 employees in each group being compared. If there are less than 10 employees with disabilities, it is presumed that the employer will still be required to file a report explaining that they cannot publish a disability pay gap to reduce the risk of individuals becoming identifiable.
Practical implications
The introduction of mandatory ethnicity and disability pay gap reporting will be a major change for UK employers as many will not have been collecting and analysing such data to date.
The consultation does not specify when these reporting requirements will be introduced, although the Government has stated it will be publishing the draft Equality (Race and Disability) Bill this parliamentary session. The earliest the reporting requirements will be introduced is 2026 with the first reports due in 2027.
The collection of ethnicity and disability data will likely be a challenging task for employers who will need to ensure that they approach their obligations in a way that does not compromise employee privacy data protection law. Calculating the average pay of a dataset as small as 10 employees may result in individual identification being possible and its usefulness is questionable as there may be significant fluctuations if employees join or leave.
Employers may also be concerned about the potential triggering liabilities and responsibilities if employees come forward and disclose that they consider themselves to be disabled when they have not previously done so.
The full consultation document can be found here.
*Maya Sterrie, trainee in the Employment Litigation practice, contributed to this article.

DOJ’s Civil Rights Fraud Initiative: Key Considerations for Health Care Providers

The Department of Justice’s (“DOJ”) May 19, 2025 “Civil Rights Fraud Initiative” memorandum, issued by Deputy Attorney General Todd Blanche (the “Initiative”), marks a consequential policy shift for False Claims Act (“FCA”) enforcement. The Initiative instructs every U.S. Attorney’s Office to “aggressively pursue” compliance with federal civil rights laws, as those laws have been interpreted by the Supreme Court under the 2023 Harvard admissions decision. The effect of this order is to treat a recipient’s knowing violation of federal civil rights laws as a “false claim” whenever that recipient has certified, impliedly or expressly, that it would comply with those laws as a condition of receiving federal dollars.
Building upon the Trump administration’s Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633 (Jan. 21, 2025) (“EO 14173”), under the Initiative, prohibited diversity, equity and inclusion (“DEI”) programs will be treated like financial fraud — they will be investigated and, where warranted, litigated under the FCA’s treble-damages regime. The Initiative also “strongly encourages” qui tam filings, inviting private whistleblowers to report suspected violations to the DOJ.
Although the Initiative specifically takes aim at colleges and universities, health care providers (both academic and non-academic) should take stock of its potential implications.
Before the Initiative was issued, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) began enforcement of EO 14173 by initiating investigations into medical schools and hospitals that receive HHS funding to determine whether such organizations “may operate medical education, training, or scholarship programs for current or prospective workforce members that discriminate on the basis of race, color, national origin, or sex.”1
Importantly, HHS’s National Institutes of Health (“NIH”) is the largest public funding source for biomedical research in the world.2 On April 21, 2025, NIH issued NOT-OD-25-090, which modified the terms and conditions for all NIH grants, cooperative agreements, and other transaction awards to incorporate EO 14173’s prohibition on DEI programs. As we noted in a recent blog post, when a federal funding recipient signs a grant agreement or accepts reimbursement through a federal benefits program, the recipient is required to “self-certify” compliance with federal civil rights laws. The Initiative explicitly characterizes such certifications as “claims for payment” under the FCA. If the recipient knows or acts in deliberate ignorance or reckless disregard of the truth or falsity of its certification, the DOJ will assert that the claim is “false.”
While all recipients of federal grant funds face some risk, the Initiative’s potential impact may be especially acute for community-based behavioral health care providers and other organizations that rely heavily on grants from the Substance Abuse and Mental Health Services Administration (“SAMHSA”). SAMHSA primarily supports these services through block grants awarded to States, which are then distributed through localities and non-profits.3
Moreover, the Initiative, like EO 14171, applies to “federal contractors” and “recipients of federal funds.” But it does not clarify whether it is intended to capture every provider that submits a claim for reimbursement from Medicare or Medicaid programs. In practice, each time a health care provider submits a claim for reimbursement to the Centers for Medicare & Medicaid Services, or a health plan, payor or contractor, they are required, much like recipients of federal grant awards, to certify compliance with all applicable federal laws, including, arguably, federal civil rights laws within the scope of the Initiative and EO 14171. As a result, Medicare and Medicaid providers receive no safe harbor; on the contrary, the sheer scale of the Medicare and Medicaid programs may make them targets for future enforcement.
Deputy Attorney General Blanche’s memorandum cements civil rights compliance as a core dimension of FCA liability and ensures that federal dollars will be conditioned not only on accurate financial claims, but also on the active fulfillment of anti-DEI mandates. Proskauer’s Health Care Group has significant experience at the intersection of the health care and FCA compliance and stands ready to assist stakeholders who are navigating the evolving regulatory landscape.

OCR clarified that its interpretation of EO 14173 encompassed “not only to student admissions at HHS-funded institutions but also to academic and campus life, including the operations of university hospitals and clinics.” See U.S. Department of Health and Human Services, HHS’ Civil Rights Office Clarifies Race-Based Prohibitions for Medical Schools to Advance Values of Initiative, Hard Work, and Excellence (May 6,2025), https://www.hhs.gov/press-room/guidance-med-schools-dear-colleague-letter.html. ↩︎
See National Institutes of Health, Grants & Funding, https://www.nih.gov/grants-funding. See also, Patrick Boyle, What’s At Stake When Clinical Trials Research Gets Cut, Association of American Medical Colleges (April 24, 2025), https://www.aamc.org/news/whats-stake-when-clinical-trials-research-gets-cut#:~:text=The%20NIH%20is%20the%20largest,on%20academic%20medical%20center%20campuses (“In 2024, more than 80% of the [NIH’s] $47 billion budget went to support research (including lab and clinical trials) at over 2,500 scientific institutions. Sixty percent of this extramural research occurred on academic medical center campuses.”).
See Congressional Research Service, Substance Abuse and Mental Health Services Administration (SAMHSA): Overview of the Agency and Major Programs (June 23, 2020), https://www.congress.gov/crs-product/R46426. ↩︎

Don’t Get Dog Tired: How to Respond to Employee Requests to Bring Service or Emotional Support Animals to Work as an Accommodation

A Maryland employer recently found itself in the Equal Employment Opportunity Commission’s (EEOC) doghouse when it allegedly summarily rejected an employee’s accommodation request to have his service animal come to work with him.
According to the EEOC’s press release concerning its recent lawsuit against the employer, the EEOC alleged that the employer, a car dealership, violated the Americans with Disabilities Act (ADA) by denying a disabled veteran’s request to bring a service dog to work to help manage his post-traumatic stress disorder (PTSD). The EEOC claimed the service animal was a medically necessary support to prevent debilitating panic attacks — a condition resulting from the employee’s combat service in Iraq.
Instead of engaging in the required interactive process to evaluate whether the request could be reasonably accommodated, the dealership summarily denied the request and offered no alternatives, according to the EEOC. The EEOC claims that lack of accommodation ultimately forced the employee to resign. Now, the company is facing a federal lawsuit seeking back pay, damages, and injunctive relief.
The case against the car dealership is a stark reminder that an employer’s obligations under the ADA may include permitting employees to bring their service animals – or even emotional support animals – to work with them as an accommodation for their disability(ies).
What the ADA Requires
The ADA prohibits discrimination based on disability in several areas, including employment. Title I of the ADA specifically requires covered employers (i.e., those with 15 or more employees) to provide reasonable accommodations to qualified individuals with disabilities. This applies both to applicants and current employees and includes the possibility of allowing service animals or emotional support animals as accommodations.
A service animal under the ADA is defined as an animal that is individually trained to do work or perform tasks for a person with a disability. These tasks must be directly related to the person’s disability, such as alerting them to a medical issue, retrieving items, or assisting with mobility. In contrast, emotional support animals (ESAs) — while they may offer therapeutic benefits — are not trained to perform specific tasks related to a disability.
Unlike in the public accommodation context under Title II (applicable to state and local governments) or Title III of the ADA (applicable to places of public accommodation), an employee’s request for an accommodation related to their emotional support animal is not unreasonable as a matter of law simply because it does not technically meet the definition of a “service animal.”
The Employer’s Role: The Interactive Process
When an employee requests an accommodation involving an animal, employers are required to engage in an interactive process — a collaborative dialogue to determine whether the request is reasonable and how it may be implemented. This process should be conducted in good faith and documented. If an employee requests that he be permitted to bring his service animal or emotional support animal to work with him as an accommodation for a medical issue, the employer’s obligation to engage in the interactive process under the ADA is triggered.
We see all too often employers get in trouble under the ADA because they summarily denied an accommodation request that they believed was not reasonable and/or would cause an undue hardship without any discussion with the employee who requested the accommodation.
When Can You Say No or Ask for More Information?
While the ADA encourages flexibility, employers are not required to allow animals in the workplace under every circumstance. If an employee requests to bring a service animal to work as an accommodation, and the employee is suffering from a non-obvious impairment, the employer is then permitted to request medical information from the employee to support the request for an accommodation.
The employer should also explore what accommodations may be effective to permit the employee to perform the essential functions of the employee’s position. A disabled employee is not entitled to their requested or preferred accommodation, only a reasonable one. That may involve working with the employee to find another accommodation that would be effective in accommodating the employee, rather than permitting the employee to bring their service or emotional support animal to work. If the EEOC’s allegations against the car dealership are accurate, then the car dealership should not have summarily rejected the employee’s service animal accommodation request but rather should have sought to work with the employee in the interactive process to find an accommodation that worked for both parties.
Lastly, employers are not legally required to provide an accommodation if it would pose an undue hardship on the employer, which is a difficult standard to meet, or if the accommodation would pose a direct threat to the health and safety of the employee or others. For example, although the case was not brought under the employment portion of the ADA, in November 2023, the Sixth Circuit Court of Appeals affirmed the grant of summary judgment to an employer who denied an employee’s request to bring her service animal to work because it caused a coworker and a patient to have allergic reactions and was therefore a direct threat to hospital safety.
What About My Place of Public Accommodation?
Employers operating places of public accommodation should also be familiar with their legal requirements under Title III of the ADA. Title III of the ADA, applicable to places of public accommodation, requires service animals (i.e., not emotional support animals) to be allowed in all areas of public access, unless (1) granting access would fundamentally alter the nature of the program; (2) the animal poses a direct threat to the health and safety of others; (3) the animal is out of control; or (4) the animal is not housebroken.
When it is not obvious what service an animal provides, only limited inquiries are permitted. Staff at places of public accommodation may ask only two questions: (1) Is the service animal required because of a disability, and (2) what work or task has the service animal been trained to perform?
On the other hand, staff at places of public accommodation cannot (1) ask a visitor what his or her disability is; (2) ask whether the person can demonstrate whether the service animal can perform the work or task; (3) require medical documentation; or (4) require a special identification card or training documentation for the service animal.
Although employees’ or visitors’ requests to bring a service or emotional support animal to your place of employment can be challenging, engaging in the required interactive process and knowing your legal requirements can help keep your workplace from going to the dogs, at least from a legal perspective.

2025 Review of AI and Employment Law in California

California started 2025 with significant activity around artificial intelligence (AI) in the workplace. Legislators and state agencies introduced new bills and regulations to regulate AI-driven hiring and management tools, and a high-profile lawsuit is testing the boundaries of liability for AI vendors.
Legislative Developments in 2025
State lawmakers unveiled proposals to address the use of AI in employment decisions. Notable bills introduced in early 2025 include:
SB 7 – “No Robo Bosses Act”
Senate Bill (SB) 7 aims to strictly regulate employers’ use of “automated decision systems” (ADS) in hiring, promotions, discipline, or termination. Key provisions of SB 7 would:

Require employers to give at least 30 days’ prior written notice to employees, applicants, and contractors before using an ADS and disclose all such tools in use.
Mandate human oversight by prohibiting reliance primarily on AI for employment decisions such as hiring or firing. Employers would need to involve a human in final decisions.
Ban certain AI practices, including tools that infer protected characteristics, perform predictive behavioral analysis on employees, retaliate against workers for exercising legal rights, or set pay based on individualized data in a discriminatory way.
Give workers rights to access and correct data used by an ADS and to appeal AI-driven decisions to a human reviewer. SB 7 also includes anti-retaliation clauses and enforcement provisions.

AB 1018 – Automated Decisions Safety Act
Assembly Bill (AB) 1018 would broadly regulate development and deployment of AI/ADS in “consequential” decisions, including employment, and possibly allow employees to opt out of the use of a covered ADS. This bill places comprehensive compliance obligations on both employers and AI vendors—requiring bias audits, data retention policies, and detailed impact assessments before using AI-driven hiring tools. It aims to prevent algorithmic bias across all business sectors.
AB 1221 and AB 1331 – Workplace Surveillance Limits
Both AB 1221 and AB 1331 target electronic monitoring and surveillance technologies in the workplace. AB 1221 would obligate employers to provide 30 days’ notice to employees who will be monitored by workplace surveillance tools. These tools include facial, gait, or emotion recognition technology, all of which typically rely on AI algorithms. AB 1221 also describes procedures and requirements for any analyzing vendor’s storage and usage of data collected by such a tool. AB 1331 more broadly restricts employers’ use of tracking tools—from video/audio recording and keystroke monitoring to GPS and biometric trackers—particularly during off-duty hours or in private areas.
Agency and Regulatory Guidance
CRD – Final Regulations on Automated Decision Systems
On 21 March 2025, California’s Civil Rights Council (part of the Civil Rights Department (CRD)) adopted final regulations titled “Employment Regulations Regarding Automated-Decision Systems.” These rules, which could take effect as early as 1 July 2025, once approved by the Office of Administrative Law, explicitly apply existing anti-discrimination law (the Fair Employment and Housing Act (FEHA)) to AI tools.
Key requirements in the new CRD regulations include:
Bias Testing and Record-Keeping
Employers using automated tools may bear a higher burden to demonstrate they have tested for and mitigated bias. A lack of evidence of such efforts can be held against the employer. Employers must also retain records of their AI-driven decisions and data (e.g., job applications, ADS data) for at least four years.
Third-Party Liability
The definition of “employer’s agent” under FEHA now explicitly encompasses third-party AI vendors or software providers if they perform functions on behalf of the employer. This means an AI vendor’s actions (screening or ranking applicants, for example) can legally be attributed to the employer—a critical point aligning with recent caselaw (see Mobley lawsuit below).
Job-Related Criteria
If an employer uses AI to screen candidates, the criteria must be job-related and consistent with business necessity, and no less-discriminatory alternative can exist. This mirrors disparate-impact legal tests, applied now to algorithms.
Broad Coverage of Tools
The regulations define “Automated-Decision System” expansively to include any computational process that assists or replaces human decision-making about employment benefits, which covers resume-scanning software, video interview analytics, predictive performance tools, etc.
Once in effect, California will be among the first jurisdictions with detailed rules governing AI in hiring and employment. The CRD’s move signals that using AI is not a legal shield and that employers remain responsible for outcomes and must ensure their AI tools are fair and compliant.
AI Litigation
Mobley v. Workday, Inc., currently pending in the US District Court for the Northern District of California, illustrates the litigation risks of using AI in hiring. In Mobley, a job applicant alleged that Workday’s AI-driven recruitment screening tools disproportionately rejected older, Black, and disabled applicants, including himself, in violation of anti-discrimination laws. In late 2024, Judge Rita Lin allowed the lawsuit to proceed, finding the plaintiff stated a plausible disparate impact claim and that Workday could potentially be held liable as an “agent” of its client employers. This ruling suggests that an AI vendor might be directly liable for discrimination if its algorithm, acting as a delegated hiring function, unlawfully screens out protected groups.
On 6 February 2025, the plaintiff moved to expand the lawsuit into a nationwide class action on behalf of millions of job seekers over age 40 who applied through Workday’s systems since 2020 and were never hired. The amended complaint added several additional named plaintiffs (all over 40) who claim that after collectively submitting thousands of applications via Workday-powered hiring portals, they were rejected—sometimes within minutes and at odd hours, suggestive of automated processing. They argue that a class of older applicants were uniformly impacted by the same algorithmic practices. On 16 May 2025, Judge Lin preliminarily certified a nationwide class of over-40 applicants under the Age Discrimination in Employment Act, a ruling that highlights the expansive exposure these tools could create if applied unlawfully. Mobley marks one of the first major legal tests of algorithmic bias in employment and remains the nation’s most high-profile challenge of AI-driven employment decisions.
Conclusion
California is moving toward a comprehensive framework where automated hiring and management tools are held to the same standards as human decision-makers. Employers in California should closely track these developments: pending bills could soon impose new duties (notice, audits, bias mitigation) if enacted, and the CRD’s regulations will make algorithmic bias expressly unlawful under FEHA. Meanwhile, real-world litigation is already underway, warning that both employers and AI vendors can be held accountable when technology produces discriminatory outcomes.
The tone of regulatory guidance is clear that embracing innovation must not sacrifice fairness and compliance. Legal professionals, human resources leaders, and in-house counsel should proactively assess any AI tools used in recruitment or workforce management. This includes consulting the new CRD rules, conducting bias audits, and ensuring there is a “human in the loop” for important decisions. California’s 2025 developments signal that the intersection of AI and employment law will only grow in importance, with the state continuing to refine how centuries-old workplace protections apply to cutting-edge technology.

Federal Court Vacated Gender Identity Portions of EEOC Harassment Guidance: Employer Uncertainty Remains

Takeaways

A federal court in Texas vacated the gender identity portions of the EEOC’s harassment guidance.
Uncertainty remains about issues like sex-designated restrooms and personal pronouns, but employers should continue to require employees to treat everyone with respect.
Employers also should consider carefully all accommodation requests and always engage in the interactive process.

Supply Chain Transparency: Updates on UK and EU Provisions on Forced Labour and Modern Slavery

Forced labour and modern slavery have been the subject of renewed focus across the UK and EU in recent months. Below we touch upon key issues relating to the UK Home Office’s update to its statutory guidance on the Modern Slavery Act; the EU ban on products made with forced labour due to come into force in 2027; and the conclusion of the Italian Competition Authority’s recent investigation into fashion brands for misstatements about forced labour.
Update to the UK Home Office’s Statutory Guidance on Supply Chain Transparency
In the UK, companies are subject to the reporting obligations set out in section 54 of the Modern Slavery Act 2015 (the MSA). The largest commercial organisations (those with a turnover of £36 million or more) must produce and publish an annual modern slavery and human trafficking statement (MSS). These statements should set out the steps taken in the last financial year by an organisation to ensure that slavery and human trafficking are not taking place in its business or supply chain.
In the 10 years since the MSA received Royal Assent, the world’s concept of supply chain transparency reporting has been transformed, leading to criticism that the UK’s reporting regime had not kept pace. In particular, there had been poor monitoring and enforcement of compliance with these requirements, resulting in inconsistency in the quality and effectiveness of such statements. In response to recommendations made by the House of Lords Select Committee on Modern Slavery in October 2024, the UK government published new guidance “Transparency in supply chains: a practical guide” (Guidance) at the end of March 2025. The Guidance offers practical advice to businesses and sets higher expectations on organisations for the contents of their MSS.
The new legislation has not changed the fundamental reporting requirements under section 54 MSA. However, the October 2024 report also recommended that the UK government enact “legislation requiring companies meeting the threshold to undertake modern slavery due diligence in their supply chains and to take reasonable steps to address problems”, so more onerous requirement may be on their way. Some other jurisdictions (e.g. Australia and Canada) already have more significant compulsory reporting requirements and others, e.g. the EU through the EU Corporate Sustainability Due Diligence Directive (CSDDD), are in the process of implementing them. Complying with the expectations in the new Guidance is a good basis for existing and incoming global benchmarks.
Key Points in the New Guidance

Section four provides more detail on what should be included in an MSS under each of the six areas of disclosure recommended (but not required) under section 54 MSA: (i) organisation structure, business and supply chains; (ii) organisational policies; (iii) assessing and managing risk; (iv) due diligence; (v) training; and (vi) monitoring and evaluation.
It breaks the level of detail down into two levels. Level 1 reflects the more limited content expected from an organisation reporting for the first time. Level 2 builds upon level 1 and reflects the more detailed disclosure expected from organisations reporting on an ongoing basis.
It provides examples of how it expects the reporting information to reflect a business’s current status in terms of supply chain transparency, to acknowledge areas where development or improvement is needed, and to articulate short- or long-term plans for that development. It emphasises the importance of continuous improvement, meaning that organisations need to consider how their modern slavery statements evidence progress year on year.
It expects organisations to summarise their remediation policies and processes.
It encourages businesses to describe incidents of modern slavery identified in their supply chain and remediation taken.
The new guidance introduces the concept of modern slavery “disclosures”, a term that does not feature in the MSA. This emulates other reporting regimes, such as the EU Corporate Sustainability Reporting Directive.
Organisations are encouraged to enter their MSS in the UK’s modern slavery registry (although it is voluntary).

There are signposts to the relevant parts of internationally recognised benchmarks for supply chain due diligence, namely the Organisation for Economic Co-operation and Development Due Diligence process and the United Nations Guiding Principles on Business and Human Rights.
How Should We Respond to the New Guidance?
Organisations that produce MSSs should:

Undertake a gap analysis exercise of their current MSS against the new guidance
Consider if any other documentation (for example existing modern slavery risk assessments, supplier due diligence questionnaires and policies) should be updated to align with the spirit of the new guidance
Assemble a team of internal stakeholders to assist with the preparation of the next statement and ensure sufficient time is allocated to deliver this
Consider briefing the Board (and any director signatory) in advance of seeking their approval of the statement if it is more detailed than the previous year

Many organisations that fall outside the scope of the current section 54 MSA requirement still opt to produce an annual MSS because they recognise the importance of corporate transparency (to the public, suppliers, shareholders or others). Any organisation publishing a statement on this basis should have regard to the new guidance.
EU Ban On Products Made With Forced Labour
EU Regulation 2024/3015 (the Forced Labour Regulation or FLR) entered into force on 13 December 2024 and will apply to EU member states from 14 December 2027. It prohibits individuals and businesses from importing into, making available in or exporting from the EU any product made with forced labour. “Making available” includes distance or online selling targeted at consumers in the EU. The FLR applies not just to products themselves, but to raw material and component parts, irrespective of where they originate. It is not limited to certain sectors or industries and covers the entire lifecycle of the product, as well as every person involved in its production, distribution and sale.
While the FLR does not impose specific due diligence obligations beyond those already provided for at EU level or in individual EU member states, it will operate in conjunction with the CSDDD when it comes into force. The FLR will be enforced by local authorities – customs and other national competent authorities – whose remit will be to prevent products made with forced labour from being imported into, exported from or made available on the EU market. The FLR provides for a Union Against Network Against Forced Labour Projects to streamline regulation and ensure information sharing and consistency. By mid-June 2026, the EU Commission is required under the FLR to publish guidance on due diligence, and on best practices for mitigating forced labour and will establish a database of products, as well as regions that pose a high risk of forced labour. The database will enable the public to submit information on breaches of the FLR. Where there is a “substantiated concern” of forced labour, the EU or national competent authority can investigate.
Decisions by the competent authorities on whether a violation of FLR has occurred (i.e., a decision on whether a product made with forced labour has been placed on the market or made available in the EU or exported from the EU) should be adopted within nine months. If there has been a violation, the competent authority has various powers, including:

Prohibiting the product from being placed on the market, or made available in the EU and from being exported
Ordering the person subject to the investigation to withdraw products already placed on the market or made available, or to remove online marketing for such products
Ordering the disposal destroy the relevant product or replace relevant component parts

The FLR provides a process for reviewing decisions of competent authorities. Businesses likely to be affected by the FLR should ensure that they have effective policies and procedures to identify and address issues of forced labour in their supply chain, to remediate issues if they arise, and a comprehensive training and audit programme. We also recommend that UK businesses ensure that these are reflected in their MSS and that careful records of supply chain due diligence are maintained so that companies can respond quickly to any investigations.
Italian Competition Authority Landmark Forced Labour Case
A recent investigation by the Italian Competition Authority highlights the breadth of ways that issues relating to modern slavery can be subject to investigation and enforcement action. In July 2024, the Italian Competition Authority (the AGCM) launched an investigation into several high-end fashion companies. According to press coverage, prosecutors in Milan identified workshops with underpaid workers, some of whom were illegal immigrants, producing leather bags that were then sold to the company and others below their retail price. The investigation was conducted under the Italian Consumer Code and considered whether the company had misled consumers in its statements about its suppliers’ working conditions.
In May 2025, the AGCM announced the closure of the investigation, without finding that a violation had occurred. As part of a settlement, the company committed to amending its ethics and social responsibility statements; introducing new supply chain due diligence and monitoring procedures; additional training internally on consumer protection laws and for suppliers on forced labour law and the ethical principles set out in the company’s Supplier Code of Conduct. It also committed to paying €2 million over 5 years to fund initiatives aimed at helping victims of labour exploitation. Other brands in the leather consumer goods industry have also been implicated in enforcement action, with reports of another fashion brand being placed under judicial administration for a year after worker abuse was discovered in its supply chain.
Companies in the UK can face similar action. In March 2024, the Competition and Markets Authority (CMA) published an open letter to businesses in the fashion retail industry, highlighting the need to consider their obligations under consumer protection law. While this primarily concerned environmental claims in the sector, the publication highlights the growing regulatory scrutiny faced by this industry. The UK authorities have a wide range of powers to investigate and prosecute individuals and businesses for misrepresentations about compliance with business human rights. Businesses could also be liable for misrepresentations by their associated persons once the UK’s new failure to prevent fraud offence comes into force on 1 September 2025.
Conclusion
In light of increased focus on forced labour issues in the UK and EU, businesses should revisit and revamp their existing risk assessments, policies and procedures relating to supply chain due diligence, transparency and monitoring. Our experts advise companies on a wide range of supply chain compliance and regulatory matters across the UK, EU and globally.

What You Need To Know Before Filing a Civil Rights Case

Being mistreated or discriminated against isn’t something anyone expects to deal with. But when it happens and your legal rights are violated, you might feel overwhelmed, confused, or unsure where to turn. Before taking any legal steps, it helps to understand what your rights actually are. Civil rights are the basic freedoms protected by law […]

Department of Justice Announces New Initiative to Combat Civil Rights Fraud Using the False Claims Act

From time to time, the Department of Justice (“DOJ”) has established initiatives, task forces, or strike teams to advance its enforcement priorities. In recent years, DOJ has announced a Procurement Collusion Strike Force, a COVID-19 Fraud Enforcement Task Force, and a Civil Cyber-Fraud Initiative, in each instance explicitly invoking a plan to use the False Claims Act (“FCA”) for civil enforcement.
DOJ announced the latest version of this enforcement approach on May 19, 2025, when Deputy Attorney General (“DAG”) Todd Blanche issued a memorandum announcing a new Civil Rights Fraud Initiative (“the Initiative”), described as a coordinated and “vigorous” effort to leverage the specter of FCA liability against recipients of federal funding alleged to be violating civil rights laws. The types of alleged civil rights violations targeted by this Initiative relate to diversity, equity, and inclusion (“DEI”) programs, antisemitism, and transgender policy, all of which dovetail with a number of Executive Orders (“EOs”) expressing President Trump’s approach to these issues.
Relevant Executive Orders
Some of the EOs relevant to the Civil Rights Fraud Initiative include:
EO No. 14151: Ending Radical and Wasteful Government DEI Programs and Preferencing (January 20, 2025). This EO directs federal government agencies to end DEI and diversity, equity, inclusion, and accessibility (“DEIA”) programs, to eliminate positions such as “Chief Diversity Officer,” and to terminate grants and contracts related to DEI and DEIA. It also orders a review of federal employment practices to ensure they focus on individual merit rather than DEI factors.
EO No. 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025). This EO declares, as United States’ policy, that there are two immutable sexes (male and female), based on biological reality. It requires changes to government-issued identification documents and prohibits federal funding for so-called “gender ideology.”
EO No. 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity (January 21, 2025). This EO requires that all federal contracts and grants include a certification that recipients do not operate any DEI programs that violate applicable antidiscrimination laws and affirms that compliance with federal anti-discrimination laws is material to government payment decisions. Additionally, the EO directs DOJ to identify key sectors and entities for DEI-related enforcement, and to recommend strategies to end “illegal DEI discrimination” in the private sector.
EO No. 14188: Additional Measures To Combat Anti-Semitism (January 29, 2025). This EO reaffirms EO 13899 from December 11, 2019, which aimed to combat antisemitism, particularly in educational institutions. It directs various federal agencies to identify actions to curb antisemitism and recommends monitoring foreign students and staff for antisemitic actions.
EO No. 14201: Keeping Men Out of Women’s Sports (February 5, 2025). This EO aims to exclude transgender individuals from competing in women’s sports. It directs the Secretary of Education to rescind funding from educational institutions that do not comply.
Structure of the Civil Rights Fraud Initiative
Against the backdrop of these EO policy statements, DOJ’s Civil Rights Fraud Initiative presents a concrete risk of investigation—and potentially FCA liability—for companies, organizations, and institutions that receive federal funding.
The Initiative will be led by the Civil Division’s Fraud Section and the Civil Rights Division, who are directed to coordinate and share information about potential violations.[1] Those units are instructed to work with the Criminal Division of DOJ and other agencies that “enforce civil rights requirements for federal funding recipients,” including the Departments of Education, Health and Human Services (“HHS”), Housing and Urban Development (“HUD”), and Labor. Additionally, each of the United States Attorney’s Offices must designate an Assistant United States Attorney to support the Initiative’s efforts, and DOJ also anticipates involving state Attorneys General.
Scope of Intended FCA Enforcement
The Blanche memorandum casts a broad net describing the scope of the Initiative’s work. It invokes civil rights laws, “including but not limited to Title IV, Title VI, and Title IX, of the Civil Rights Act of 1964.” These statutory provisions generally prohibit discrimination on the basis of race or sex in educational settings and other programs that are supported by federal funding. DOJ’s Civil Rights Division is responsible for investigating and enforcing violations of these provisions, and the Division traditionally seeks relief in the form of litigation, consent decrees with mandatory reporting, and required remediation measures designed to cure the unlawful practices, as well as coordinated audit efforts with the Equal Employment Opportunity Commission.
The Blanche memorandum identifies other areas of focus for the Initiative without reference to particular statutes, regulations, or standard contract provisions, including:

Antisemitism: “… a university that accepts federal funds could violate the False Claims Act when it encourages antisemitism, [or] refuses to protect Jewish students.”
Transgender participation: a university that “allows men to intrude into women’s bathrooms or requires women to compete against men in athletic competitions.”[2]
DEI programs: The memorandum states that the Initiative will use the FCA to stop the “fraud, waste, and abuse” that allegedly occurs when recipients of federal funding “certify compliance with civil rights laws while knowingly engaging in racist preferences, mandates, policies, programs, and activities.” The memorandum further states that “many corporations and schools continue to adhere to racist policies and preferences—albeit camouflaged with cosmetic changes that disguise their discriminatory nature.”

A Clarion Call to Whistleblowers
The Blanche memorandum states that DOJ “alone cannot identify every instance of civil rights fraud,” and the DOJ therefore “strongly encourages” potential whistleblowers to participate in the Initiative by filing lawsuits under the FCA’s qui tam provisions. These provisions allow a private party to file (under seal) a lawsuit on behalf of the United States alleging the FCA violations, and to continue pursuing that lawsuit even if DOJ declines, usually after lengthy investigation, to intervene in the case. The FCA rewards these “qui tam relators” with a share—up to 30 percent—of any amounts recovered in the case. Successful qui tam relators are also entitled to recover their reasonable attorney’s fees and costs from the defendant.[3]
Given these considerable financial incentives, the Initiative likely will result in qui tam lawsuits related to DEI, antisemitism, or transgender policies in women’s sports or in women’s bathrooms.[4] Aside from the option to file suit, the Blanche memorandum asks “anyone with knowledge of discrimination by federal-funding recipients to report that information” so that DOJ can take action.
Applying the FCA to Civil Rights
Courts historically have interpreted the FCA’s basic elements of “knowingly” submitting (or causing the submission of) “false claims” to the government broadly, to reach all manner of alleged schemes—from billing for healthcare services that were not provided to impliedly certifying compliance with complex cybersecurity standards; from alleged misuse of federal grant funds to avoiding customs duties.
In these more conventional applications, DOJ (or a qui tam relator) alleges noncompliance with an underlying contract term, statute, or regulatory requirement under an express or implied “false certification” theory of FCA liability. In those cases, the FCA’s materiality element serves as an important check. Only if the underlying violation or compliance issue is “material” to the government’s decision to pay does FCA liability attach.[5]
Because DOJ has other mechanisms at its disposal to investigate and correct non-compliance with civil rights laws, using the FCA to address discrimination has been relatively uncommon. Application of the FCA to civil rights matters is not entirely without precedent, however. For example, in 1995, the government pursued FCA claims against a locality for ignoring conditional spending requirements attached to housing grants.[6] A decade later, DOJ announced a significant settlement against Westchester County, New York, to resolve a qui tam lawsuit alleging that the county falsely certified its compliance with fair housing obligations in order to receive federal funds through a block grant.[7] In 2024, DOJ resolved qui tam allegations that the City of Los Angeles knowingly failed to meet accessibility requirements for the disabled in seeking federal grant funds to build affordable housing.[8] Each of these cases was premised on a “false certification” theory, meaning the government relied upon the defendants’ allegedly false certifications that they would comply with federal fair housing or accessibility laws when funding the grants or contracts at issue. DOJ claimed that those recipients of federal funds violated clearly stated contractual, statutory, or regulatory requirements.
Challenges to Proving FCA Liability
The civil rights violations that the Blanche memorandum discusses most extensively relate to DEI programs. But, as we discussed in an earlier client alert, the government will face a number of challenges to establishing FCA liability based on an entity’s DEI program, even when a DEI certification requirement (such as those mandated by EO 14173) is at issue. The DEI certifications that have been promulgated to date do not use standardized language across the government, incorporate undefined terms, and are not part of any overarching statutory or regulatory framework with which federal funding recipients (or even judges) are familiar. In these circumstances, the government (or a qui tam relator) will have difficulty establishing the FCA elements of falsity and scienter (“knowledge”).
The FCA’s materiality element will also be challenging for the government to prove, since the broad DEI certifications currently being imposed on contractors from EO 14173 rarely bear any connection to the purpose of the government contract or grant agreement. In the cases mentioned above, the alleged false certification tied directly to the reason for funding, e.g., an agreement to abide by fair housing requirements to receive federal funds to build housing. By contrast, it seems unlikely that even a known DEI compliance issue would cause the government to withhold payment of invoices for work or goods that fulfilled the contract.
Nonetheless, DOJ’s announcement of the Initiative presents a number of unanswered questions as to when an entity might face investigation, whether or not liability can be proven. For instance, it is not clear whether a company that is found liable for—or even settles—an employment discrimination claim could be subject to inquiry on the basis that the company “knows” it has violated Title VII.
Similarly, the Blanche memorandum’s suggestion that an FCA investigation could be triggered for universities (and perhaps companies) that allow transgender access to women’s bathrooms raises further questions. There is no express certification in government contracts or grants on this issue; nor is there a federal law specifically governing access to women’s bathrooms, making it difficult to imagine how the falsity, scienter, or materiality elements of the FCA could be proven. In the aggressive enforcement environment that the Blanche memorandum heralds, however, this may be precisely the kind of test case that a qui tam relator may decide to pursue.
Somewhat ironically, the Blanche memorandum’s threat of FCA liability based on EO policy statements (in contrast to the specific statutory regimes it mentions), contradicts the first Trump administration’s declaration that enforcement should not be based on “sub-regulatory guidance.” The January 25, 2018 memorandum by then-Associate Attorney General Rachel Brand sought to curtail prosecutions of alleged violations of policy. Even though the Brand memo was rescinded during the Biden administration, its approach aligned with the FCA principle that, for a claim to the government to be actionable, there must be some demonstrable noncompliance with a material contract-term, statute, or regulatory provision. The Blanche memorandum deviates from this approach by suggesting that DOJ will investigate and pursue as FCA matters conduct that the administration deems objectionable.
Conclusion
With the new Initiative, DOJ is signaling its intent to aggressively pursue civil FCA enforcement actions for conduct that violates existing civil rights laws as well as the administration’s policy views. Time will tell whether this Initiative broadens the scope of FCA liability, but it certainly increases the risk that companies and organizations will need to deal with whistleblowers, lengthy investigations and potentially costly litigation, and the attendant reputational harm that can arise from being the target of allegations of fraud against the government.

[1] According to recent reports, DOJ’s Civil Rights Division will lose more than half of its attorney staff by the end of May 2025. See 70% of the DOJ’s Civil Rights Division lawyers are leaving because of Trump’s reshaping : NPR (“Some 250 attorneys — or around 70% of the division’s lawyers — have left or will have left the department in the time between President Trump’s inauguration and the end of May, according to current and former officials.”),

[2] The reference to “men” appears to refer to transgender women, in keeping with EO 14168 establishing as the “policy” of the United States “to recognize two sexes, male and female.”

[3] See 31 U.S.C. § 3730(b)-(d) (actions by private persons; rights of the parties to qui tam actions; award to qui tam plaintiff).

[4] Over the past forty years, qui tam relators have brought cases yielding recoveries to the United States of more than $55 billion. Relators collectively have received about $9.5 billion in recoveries, exclusive of claims for attorney’s fees and costs. See Civil Division, Department of Justice, “Fraud Statistics Overview: October 1, 1986-September 30, 2024.” (Jan. 15, 2025), available at https://www.justice.gov/archives/opa/media/1384546/dl.

[5] The Supreme Court has described FCA materiality as a rigorous—and often fact-intensive—gatekeeper. To demonstrate that an underlying violation was not material to the government’s payment decision, however, defendants may need to collect extensive evidence during litigation and discovery.

[6] United States v. Incorporated Village of Island Park, 888 F. Supp. 419 (E.D.N.Y. 1995).

[7] United States ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, 668 F. Supp. 2d 548 (S.D.N.Y. 2009).

[8] United States ex rel. Ling, et al. v. City of Los Angeles, et al., CV11-974-PG (C.D. Cal.); See United States Department of Justice Press Release

Better Late Than Never? Not in the 5th Circuit: Delayed Action on Accommodation May Be ADA Violation

Earlier this month, in Strife v. Aldine Independent School District, the Fifth Circuit Court of Appeals held that an employer’s delayed accommodation of an employee’s disability could amount to a failure to accommodate under the Americans with Disabilities Act. This case serves as an important reminder not only to take all requests for disability accommodations seriously but also to respond swiftly and without undue delay.
ADA Basics
Under the ADA, employers cannot discriminate against employees based on their disabilities. In addition, employers must accommodate known disabilities, if requested. The employer does not have to give the exact requested accommodation, but they must engage in the “interactive process,” through which the employer and employee work together to find a reasonable accommodation that will both enable the employee to perform the essential job functions and work for the employer’s business needs. The duty to engage in the interactive process begins when the employer is on notice of the employee’s disability and desire for an accommodation.
The Facts
Alisha Strife requested that her employer, the Aldine Independent School District, allow her service dog to accompany her at work, in connection with her multiple disabilities. The school requested additional information, and Strife submitted a letter from her treating provider. The school, however, deemed the letter insufficient because it was not from a board-certified medical provider and requested further supporting documentation. Strife then submitted a letter from her psychiatrist, after which the school requested that she submit to an independent medical examination.
After the examination, the school and Strife’s lawyer exchanged various communications, and Strife provided three additional letters and underwent another exam confirming her need for the service dog. The school took issue with these items, including stating that they failed to “provide any information regarding potential alternative accommodations.” After roughly six months, the school ultimately granted the request.
Strife filed suit alleging, in part, that the school failed to accommodate her disabilities, and the school moved to dismiss. The court granted the motion to dismiss as to the failure to accommodate claim and a hostile work environment claim and later granted summary judgment on other ADA claims. On appeal, however, the Fifth Circuit reversed the dismissal of the failure to accommodate claim (but affirmed the district court’s treatment of the other claims).
The Holding
The Fifth Circuit held that Strife plausibly stated a claim for failure to accommodate, even though the school ultimately granted her requested accommodation. The court defined the question as “whether th[e] six-month delay, in and of itself, constitutes a failure to accommodate.” While noting that employers are not required to move “with maximum speed,” the court held that a delay can constitute a failure to accommodate because, “otherwise, an employer could circumvent the ADA’s protections by forcing an aggrieved employee to endure an endless interactive process.”
Under these facts, the court held that the delay could constitute a failure to accommodate. Specifically, the court noted that the school’s actions indicated a lack of good faith, as Strife repeatedly provided documents confirming her need for the accommodation, the accommodation was granted only after she initiated legal action, and the delay forced her to work in “suboptimal conditions” for six months.
Takeaways
This case serves as an important reminder to move expeditiously on accommodation requests. While you do not need to rush into a decision or simply grant an employee’s exact request as soon as it comes in, remember to engage in the interactive process in good faith and without undue delay. As always, consult with your employment lawyer with any questions about best practices in the interactive process. As for Ms. Strife’s case, the Fifth Circuit held that she had plausibly alleged a failure to accommodate due to the six-month delay and that her claim should go forward. Time will tell whether she will succeed on this claim.
Listen to this post

DOJ Announces Intent to Use False Claims Act To Target Diversity and DEI Initiatives

At a Glance

The Department of Justice (DOJ) will use the False Claims Act (FCA) to investigate and pursue claims against entities that violate federal civil rights laws, including anti-discrimination and equal employment opportunity obligations, which may include diversity, equity, and inclusion (DEI) programs. Unlike many federal civil rights laws, the FCA allows for significant uncapped damages.
To the extent your organization receives an inquiry from the Department of Justice or any agency inquiring about compliance with federal civil rights laws or DEI, contact your counsel. Recipients of federal funds should carefully review any representations regarding federal civil rights laws or DEI associated with federal contracts or grants. Further, recipients of federal funds should proactively review their compliance with federal civil rights laws and initiate such review promptly, prioritizing review of externally facing information, as such information could trigger an investigation.

The DOJ has announced a new “Civil Rights Fraud Initiative” (Initiative) under which it will use the government’s chief anti-fraud statute, the FCA, to pursue claims against institutions for violating civil rights laws including the anti-discrimination and equal employment opportunity obligations under Title VII of the Civil Rights Act of 1964 (Title VII) and specifically illegal diversity and DEI initiatives.
Under the FCA, 31 U.S.C. § 3729, the government may recover treble damages as well as significant penalties from any recipient of federal funds that makes a false claim for such funds. Further, unlike many federal civil rights laws, such as Title VII, the FCA does not have caps on damages. Under this Initiative, DOJ is targeting recipients of federal funds who “falsely certify” compliance with federal civil rights laws. In its announcement, DOJ specifically outlined situations in which it believes institutions–in particular universities–may violate civil rights laws and thus provide a basis for an FCA cause of action, including: “encourage[ing] antisemitism, refus[ing] to protect Jewish students, allow[ing] men to intrude into women’s bathrooms, or require[ing] women to compete against men in athletic competitions.”
The Initiative will be led by the Fraud Section of DOJ’s Civil Division, which typically oversees FCA matters, as well as the Civil Rights Division, which enforces federal laws prohibiting discrimination. The effort will also be supported by the various United States Attorney’s offices as well as DOJ’s Criminal Division. And, further, the announcement directs DOJ to engage with other agencies such as the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development, and the Department of Labor in pursuit of this work—highlighting that recipients of federal funding distributed by these agencies may be the first in line for DOJ scrutiny.
The Administration’s Anti-DEI Efforts
This new Initiative is part of the administrations’ larger effort to combat DEI and other policies, as articulated in President Trump’s Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing;” Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government;” and Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Read Polsinelli’s analysis of recent Executive Orders and other developments here.
Notably, Attorney General Pam Bondi had already issued a memorandum entitled “Ending Illegal DEI and DEIA Discrimination and Preferences” on February 5th, which directed DOJ’s Civil Rights Division to develop recommendations for enforcing civil-rights laws against DEI policies. The Initiative is an early indication of the enforcement steps DOJ will be taking to further the Executive Orders.
Legal Challenges to Anti-DEI Efforts
The administration’s anti-DEI Executive Orders have already been subject to numerous legal challenges.
In National Association of Diversity Officers in Higher Education v. Trump, Case No. 25-1189 (D.M.D.), plaintiffs challenged the executive orders on the basis that they violated the First Amendment’s free speech protections and the Fifth Amendment’s due process clause. Though successful at the district court level, on March 14, 2025, the Fourth Circuit stayed the district court’s preliminary injunction pending appeal.
In Chicago Women in Trades v. Trump, Case No. 25-2005 (N.D. Ill), a similar case, the district court issued a nationwide injunction on April 14, 2025, that restricts the Department of Labor (DOL) from requiring a federal contractor to make certifications relating to their DEI programs. 1
Polsinelli will continue to monitor these cases as they develop. The legal challenges to these Executive Orders—such as violation of the First or Fifth Amendments—will inform whether and how DOJ may pursue FCA claims as laid out by the Initiative.
FCA Potential Theories and Risks
To state a claim under the FCA, DOJ must show a false claim, knowledge of the falsity on the part of the defendant and materiality of the false statement to the government’s decision to pay.
Executive Order 14173 referenced above requires government agencies to ensure that federal contractors and grant recipients make certifications that they do not engage in any DEI or other programs that the administration believes violate anti-discrimination laws. While the DOL is currently enjoined from enforcing the DEI certification requirement, other government agencies are permitted to move forward with the certification requirement. These certifications will almost certainly be used to provide express false certifications for the purposes of FCA claims involving illegal DEI programs.
Further, Executive Order 14173 requires that government agencies include a term in every contract or grant award indicating that “compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions.” This language has started to be rolled out by various government agencies and will be used to try to satisfy the FCA’s materiality requirement.
The FCA also includes a qui tam provision that allows individuals to file lawsuits on behalf of the government and, if successful, receive a portion of the recovered funds. In addition to DOJ enforcement actions, whistleblower complaints related to illegal DEI programs pose a substantial risk to federal contractors and grant recipients.
Even if no DEI certification is made, other representations made or implied by recipients of federal funding in their interactions with the government could also form a basis for an FCA inquiry.
These issues will no doubt be the subject of legal challenges to future FCA enforcement actions brought by both the DOJ and whistleblowers.
Key Takeaways

Recipients of federal funding should proceed cautiously. Further, such recipients should proactively review their diversity and DEI programs and documentation now with the assistance of experienced counsel to allow time for the review and implementation of any recommended changes. Under this new Initiative, DEI and other programs, especially those externally facing, may draw DOJ or whistleblower attention. In addition, representations made as part of contracting or other communications with the government, particularly any direct representations regarding DEI or other programs, should be made carefully.
Recipients of federal funding should continue to monitor the development of legal challenges to the various Executive Orders. As these cases wind through the courts and result in nationwide or more limited injunctions, there will be substantial uncertainty in their enforceability and the validity of any related FCA claims.
To the extent that you receive any inquiry from DOJ, any funding agency or other law enforcement entities regarding DEI or other policies, seek counsel. Such inquiries may indicate an underlying FCA investigation.

[1] Other challenges include Shapiro et al. v. U.S. Department of the Interior et al., Case No. 25-763 (E.D. Pa.), National Urban League v. Trump, Case No. 25-00471 (D.D.C.), and San Francisco AIDS Foundation et al. v. Trump et al., Case No. 25-1824 (D.D.C.).

The Employment Strategists Ep 13 – Hot Weather, Hot Takes, Dress Code in the Workplace [Podcast]

David T. Harmon and Mariya Gonor explore how employers can keep their policies compliant, respectful, and inclusive—from gender-neutral standards to religious accommodations and ethnicity. They also examine real cases where dress code violations by employees led to legal action.
This podcast is not intended, and should not be taken, as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only and you are urged to consult a lawyer concerning your own situation with any specific legal questions you may have. The content reflects the personal views and opinions of the participants.