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.
Filing EEO-1 Reports in 2025: Key Points Employers Need to Know
Every year, private sector employers with 100 or more employees, and federal contractors with 50 or more employees who met certain criteria, are required to submit workforce demographic data to the federal Equal Employment Opportunity Commission (EEOC). Such employers may also be required to file similar reports under applicable state laws. The federal filing is known as the EEO-1 Report. While the authority for the report comes primarily from a federal statute, recent Executive Orders and changing EEOC Guidance surrounding race, gender, DEI and affirmative action have caused some employers, including manufacturers, to question what their current reporting responsibilities are for this year. To that end, below are several key points that employers filing EEO-1 reports need to know:
Private employers that meet the threshold criteria noted above are still required to file EEO-1 reports. The EEOC announced that the 2024 EEO-1 Component 1 data collection opened on May 20, 2025. The deadline for submitting and certifying 2024 EEO-1 Component 1 Reports is June 24, 2025.
Note that this is a shorter collection period for employers and according to the EEOC, this period will not extend past the June 24, 2025 deadline.
Unlike past years, the EEOC will only be sending electronic notices to filers. No notifications about this collection period will be sent via postal mail. This includes letters of non-compliance after the collection period has closed.
Previously, employers were allowed to submit employee information under a non-binary designation. That has since been removed. Employers must report employees’ biological sex meaning they must select male or female when reporting this information.
Note that no organization may use the information collected in its EEO-1 report to justify treating employees differently based on their race, sex, or any other protected characteristic.
Employers subject to the filing requirement should take the steps necessary to meet next month’s reporting deadline. Employers that require assistance with EEO-1 reporting and related compliance with such laws, should consult competent legal counsel.
This post was co-authored by Labor + Employment Group lawyer Bryce Simmons.
Federal Court Strikes Down Key Portions of EEOC Harassment Guidance
On May 15, a Texas federal court vacated portions of the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Harassment in the Workplace, concluding that the agency’s expanded interpretation of “sex” under Title VII exceeded its statutory authority (Texas, et al. v. EEOC, 2:24-CV-173).
This decision has immediate, nationwide implications for employers, particularly with respect to workplace policies addressing harassment based on gender identity and sexual orientation.
Background and Scope of the Ruling
The EEOC’s guidance, adopted in 2024 by a narrow 3-2 vote, faced internal opposition, notably from the Acting Chair Andrea Lucas, who objected to provisions treating denial of access to facilities consistent with an individual’s gender identity and intentional misuse of names or pronouns as harassment under Title VII. President Trump’s Executive Order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” excluded gender identity from the definition of sex and directed federal agencies to align policies with “biological truth.” As a result, the EEOC was instructed to amend any conflicting guidance. However, due to a lack of quorum, the agency has been unable to formally rescind or revise the guidance. In response to the Executive Order, Lucas declared a change in the agency’s priorities, emphasizing the protection of women from sex-based discrimination by rolling back policies associated with gender identity. These changes involve deactivating the agency’s “pronoun app,” removing non-binary gender markers from discrimination charge forms, and purging EEOC resources of materials that promote gender ideology.
In its ruling, the Texas court determined that certain provisions — specifically all language defining “sex” in Title VII to include “sexual orientation” and “gender identify,” harassment based on sexual orientation and gender identity, and all language defining “sexual orientation” and “gender identity” as a protected class — exceeded the EEOC’s statutory authority and conflicted with existing law. As a result, the court vacated these sections on a nationwide basis.
Vacated Guidance
The vacated guidance of these provisions likely means the EEOC will not be filing litigation alleging discrimination on the basis of sex or gender identity. The EEOC has already withdrawn a number of cases alleging discrimination on the basis of gender identity and has marked these sections on its website to help identify which provisions are no longer operative. This includes guidance and examples related to harassment based on sexual orientation or gender identity, such as intentional misgendering and denial of access to sex-segregated facilities aligned with an individual’s gender identity.
Implications for Employers
Employers should still proceed with caution where these issues arise. The US Supreme Court has interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination rooted in sex-based stereotypes, beginning with its decision in Price Waterhouse v. Hopkins in 1989. This interpretation was further expanded in 2020 with Bostock v. Clayton County when the Supreme Court held that adverse employment actions against individuals because of their sexual orientation or transgender status are forms of sex discrimination. However, given the Texas decision, future clarification is likely. Moreover, there are a number of state and local laws that expressly prohibit discrimination on the basis of sexual orientation and gender identity.
Employers should closely monitor further developments from the EEOC and the courts. In the interim, it is advisable to review workplace policies and training materials to ensure they are consistent with applicable federal and state law and to seek legal guidance on handling complaints related to gender identity and sexual orientation.
Workplace Strategies Watercooler 2025: Mental Health Matters—Managing Issues at Work [Podcast]
In this installment of our Workplace Strategies Watercooler 2025 podcast series, John Stretton (shareholder, Stamford) and Maria Greco Danaher (shareholder, Pittsburgh) discuss mental well-being and mental health issues in the workplace. Maria and John highlight the challenges employers face when dealing with employees who have mental health conditions, and explore common issues, such as anxiety, depression, addictive behaviors, introversion, and discrimination concerns. The speakers provide tips on how to recognize, discuss, and manage anxiety among employees. They also share effective practices for promoting a professional and emotionally supportive work environment while properly handling accommodation requests under the Americans with Disabilities Act and addressing potential legal concerns.
It’s Time Again for Employer’s to File Their EEO-1 Reports
This is a reminder that the 2024 EEO-1 Component 1 data collection opened on Tuesday, May 20, 2025. All employers who have at least 100 employees and employers who are federal government contractors who have at least 50 employees are required to complete and submit an EEO-1 Report (a government form that requests information about employees’ job categories, ethnicity, race, and gender) to the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor every year. The deadline to file the 2024 EEO-1 Component 1 report is Tuesday, June 24, 2025.
Per the EEOC, “The collection period will not extend beyond the Tuesday, June 24, 2025 “Published Due Date” deadline. Additionally, beginning with the 2024 EEO-1 Component 1 data collection, all communications sent to filers will be electronic. No notifications about the 2024 collection will be sent to filers via postal mail. To meet this deadline, the EEOC strongly encourages eligible filers to begin the filing process as soon as possible.”
Additionally, the EEOC has stated that it will not provide a “failure to file” period as offered in previous years, and employers should not expect an extension. For more information please visit here.
An EEOC Victory Provides Lessons on Applicant Drug Testing Accommodations
A recent jury verdict reminds employers of their reasonable accommodation obligations for applicants under the Americans with Disabilities Act (ADA), in the context of drug testing. The U.S. Equal Employment Opportunity Commission (EEOC) sued a retirement community for denying employment to an applicant based on a failed drug test—one that the applicant warned the employer she would fail because of her medications. And, as the EEOC announced in a recent press release, a jury awarded her over $400,000 in damages.
Quick Hits
A jury awarded more than $400,000 in damages to an applicant who was denied employment due to a failed drug test—one that the applicant, a veteran, informed the employer she might fail because of legally prescribed medications she took for PTSD.
The EEOC successfully argued that the employer, a retirement community, violated the ADA by failing to allow the applicant to explain her non-negative drug test result.
The verdict serves as a reminder for employers of their reasonable accommodation obligations to applicants under the ADA, both before and after a conditional job offer, when an applicant discloses disability-related prescription drug use and/or has a non-negative test result.
Background
In EEOC v. The Princess Martha, LLC, an applicant interviewed for and was offered a position as an activities coordinator for a retirement community, pending the community’s standard background check and drug test. According to the EEOC’s complaint, during her interview, the applicant told the activities director that she was a veteran with post-traumatic stress disorder (PTSD), for which she took legally prescribed medications that would cause her to fail a drug test. The activities director responded that the position did not involve tasks that would be impaired by those medications and that the testing facility would take copies of her prescriptions.
When the applicant offered her prescriptions to the testing facility, however, she was told it was unnecessary because they would call her later to verify any foreign substances. But she did not hear back from them, or from the retirement community. Six days later, she called the activities director and was told that the human resources (HR) department should have contacted her. After being transferred to HR, the applicant left a voicemail, expressing concern that she had not received a drug test result and reiterating that her medications would cause a non-negative result. The next day, her offer of employment was rescinded.
The Jury Verdict
The applicant filed a charge of discrimination with the EEOC, and the EEOC subsequently sued the retirement community, asserting a failure to allow the applicant to explain the non-negative result and a failure to employ her. A jury agreed, awarding the applicant $5,083 in back pay, $50,000 in compensatory damages, and $350,000 in punitive damages.
What the ADA Requires
As set forth in the EEOC’s “Enforcement Guidance on Preemployment Disability-Related Question and Medical Examinations,” the ADA prohibits employers from asking an applicant to answer medical questions or take a medical exam prior to making a conditional job offer. This specifically includes questions about prescription drug use.
If an applicant has voluntarily disclosed a disability or noted a need for accommodation during the pre-offer stage, however, the ADA permits an employer to ask limited questions about what type of reasonable accommodation would be needed now or in the near future—but not about the underlying condition or accommodation needs in the more distant future. (This is what happened here—the applicant voluntarily disclosed her PTSD and use of prescription medication. The activities director appropriately responded that the prescriptions should be provided to the testing facility to explain the non-negative result. Unfortunately, the employer then took a wrong turn.)
After a conditional job offer is extended but before employment begins, an employer is free to ask any disability-related questions and require any medical examinations of an applicant, so long as it does so for all applicants entering the same job category. The questions and/or examinations do not have to be job-related. An employer may reject an applicant because of the applicant’s answer or results, however, only where it is “job-related and consistent with business necessity.”
There are special rules around drug testing. Because the current use of illegal drugs is not protected under the ADA, drug tests are not considered medical examinations. Nonetheless, the results of drug tests can implicate disabilities, triggering coverage by the ADA. In particular, the EEOC’s guidance contains the following question and answer (Q&A), in the context of a post-offer drug test:
May an employer ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs?
Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.
Example: If an applicant tests positive for use of a controlled substance, the employer may lawfully ask questions such as, “What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?”
Although the language in this guidance sounds permissive (“may”), other EEOC guidance suggests otherwise. For example, in the EEOC’s guidance on the “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” the EEOC offers the following Q&A:
What if a drug test comes back positive because I am lawfully using opioid medication?
An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. An employer may do this by asking all people who test positive for an explanation.
Accordingly, it seems that the EEOC believed that the employer in the current case had an obligation to ask those questions since the applicant had disclosed her use of legally prescribed medications that would cause her to fail the drug test. And this information was effectively a request for accommodation—to be excused from disqualification from employment based on the drug test results. The failure to ask those questions was, arguably, the employer’s first stumble.
Of course, once an applicant requests a reasonable accommodation, that may trigger the interactive process by which the employer may obtain more information (if necessary) to establish if there is a disability and to assess whether a reasonable accommodation can be provided without imposing an undue hardship on the employer. And here, the employer encountered a potential pitfall. Given that the activities director had stated that the responsibilities of the job would not be impacted by the applicant’s medication, it was hard to then argue that excusing the applicant from the drug test results would be an undue hardship.
Key Takeaways for Employers
This case reminds employers that there are specific rules with regard to the treatment of applicants under the ADA. The ADA and interpretive guidance promulgated by the EEOC delineate what employers can and cannot do if an applicant voluntarily discloses disability-related information before an offer is made, or if an applicant fails a post-offer/preemployment medical examination. And employers may not want to categorically disqualify an applicant who fails a drug test—particularly where the applicant has made clear that he or she may have a legal reason for doing so.
Washington Governor Signs Bill Making Key Changes to Equal Pay and Opportunities Act
On May 20, 2025, Washington Governor Bob Ferguson signed a bill into law that will provide employers with a cure period for job postings that do not include pay information, allow employers to advertise a fixed amount of pay instead of a wage scale or wage range, and make other substantial changes to the state’s Equal Pay and Opportunities Act (EPOA).
Quick Hits
Washington Governor Ferguson signed legislation amending the pay transparency requirements of the EPOA.
The amended EPOA provides employers a cure period of five business days after receiving notice of a defective posting to change a posting to comply with the pay transparency requirements.
The new law will also allow employers to advertise a single fixed pay amount in job postings instead of a pay range, in certain circumstances.
The law also limits remedies for affected job applicants, allowing them to seek either administrative remedies or statutory damages in a private civil action.
Washington Substitute Senate Bill (SSB) 5408 amends the pay and benefit information in job positions required by the EPOA, provisions that have led to hundreds of class action lawsuits since summer 2023. The law will take effect on July 27, 2025.
The signing comes after Washington lawmakers passed SSB 5408 with amendments in April 2025, updating the pay transparency provisions in Revised Code of Washington (RCW) 49.58.110.
Specifically, RCW 49.58.110 requires employers with fifteen or more employees to affirmatively disclose in each job posting the salary range or wage scale offered for the position, in addition to a general description of all benefits and other compensation offered for the position.
SSB 5408 updates the law to allow Washington employers to list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers. In addition, the law will exempt job postings that are “digitally replicated and published without an employer’s consent” from the pay equity requirements.
The law will also allow employers five business days to correct noncompliant job postings after receiving a written notice and avoid penalties from the effective date of July 27, 2025, through July 27, 2027.
SSB 5408 further defines and clarifies two separate remedies. Job applicants affected by an allegedly noncompliant job posting will be able to either seek administrative remedies, including civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation, or pursue a private civil action to recover “statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The remedies are exclusive of each other.
Marubo Tribe Sues The New York Times Over Defamation
Marubo Tribe Sues The New York Times Over Defamation. The Marubo tribe, an Indigenous group living deep in Brazil’s Amazon rainforest, is taking on three major U.S. media outlets in a $540 million defamation lawsuit, accusing them of publishing false and degrading claims about their people. The Marubo live on the upper course of the […]
D.C. Federal Court Rules Termination of Democrat PCLOB Members Is Unlawful
On May 21, 2025, the U.S. District Court for the District of Columbia ruled that two Democrat members of the United States Privacy and Civil Liberties Oversight Board (“PCLOB”) were unlawfully terminated by President Trump.
The plaintiffs, Travis LeBlanc and Edward Felten, argued in their complaint against the PCLOB and others that the termination by the President of their positions on the PCLOB violated federal law and the U.S. Constitution. The court concluded that Congress intended to restrict the President’s power to remove PCLOB members, the restriction as applied to the plaintiffs is constitutional, and the plaintiffs’ required relief is appropriate. Accordingly, the court granted plaintiffs’ motion for summary judgment and denied the defendants’ cross-motion for summary judgment.
In reaching its conclusion, the court reasoned:
In response to the 9/11 Commission Report, Congress created an independent, multimember board of experts and tasked its members with the weighty job of overseeing the government’s counterterrorism actions and policies, and recommending changes to ensure that those actions and policies adequately protect privacy and civil liberties interests. And, as the Court has now concluded, that responsibility is incompatible with at-will removal by the President, because such unfettered authority would make the Board and its members beholden to the very authority it is supposed to oversee on behalf of Congress and the American people. To hold otherwise would be to bless the President’s obvious attempt to exercise power beyond that granted to him by the Constitution and shield the Executive Branch’s counterterrorism actions from independent oversight, public scrutiny, and bipartisan congressional insight regarding those actions. And, when the President contravenes a statutory scheme designed by Congress to ensure that these interests are adequately protected, it is specifically the “province and duty” of the independent Judiciary to “say what the law is.”
How Will the EEOC’s Investigation of Anti-American Bias and Antisemitism Impact Organizations?
The U.S. Equal Employment Opportunity Commission (EEOC) has made numerous changes in 2025 with respect to both personnel and priorities. On January 21, 2025, Acting Chair Andrea Lucas announced that one of the priorities of the EEOC’s compliance, investigations, and litigation is protecting employees from religious bias and harassment, including widespread campus antisemitism. Then, on February 19, 2025, Lucas announced, “The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop… The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.” It is common for the EEOC to announce priorities in its investigations. It is believed by the current administration that the shift in the EEOC’s focus will help deter illegal migration, abuse of legal immigration programs, and anti-American discrimination through increasing enforcement of antidiscrimination laws against employers that prefer non-American workers.
If EEOC nominee Florida Assistant U.S. Attorney Brittany Bull is confirmed by the Senate, the EEOC likely will be able to move forward with enforcement of these new priorities.
EEOC Enforcement Priorities under the New Administration
The EEOC is tasked with administration and enforcement of civil rights laws against workplace discrimination. Pursuant to Title VII of the Civil Rights Act of 1964, as amended, the EEOC is comprised of five commissioners, including a chair, all of whom are political nominees. There must be at least three commissioners to have a quorum.
When President Trump was elected, many of those watching the direction of the EEOC did not believe much would change soon in terms of (1) issuance of new guidance, (2) revocation of formerly issued EEOC guidance, and (3) enforcement priorities because, due to the commissioners’ staggered five-year terms, it was believed that the earliest the EEOC could have a Republican majority would be July 2026.
Things have changed, however, since two Democrat EEOC commissioners were fired in January 2025. This was followed by the April 23, 2025, Executive Order “Restoring Equality of Opportunity and Meritocracy,” which announced that the EEOC would look at all pending investigations and lawsuits, including those under Title VII of the Civil Rights Act of 1964, that rely on the theory of disparate-impact liability and would seek “to eliminate the use of disparate-impact liability.” If current commissioner nominee Brittany Bull is confirmed by the Senate, the EEOC will have a Republican majority and a proverbial “green light” on its new enforcement priorities.
These new enforcement priorities, as set forth (above) by Acting Chair Andrea Lucas, include protecting employees from religious bias and harassment, particularly widespread campus antisemitism, and protecting workers from anti-American harassment and discrimination through a shift in focus of Title VII’s prohibition against national origin discrimination.
Lucas’s promise to hold colleges and universities accountable for rising antisemitism is part of a broader goal of many in government to protect Jewish students and employees from discrimination based on religion. For example, on March 18, 2025, Indiana Senator Jim Banks introduced the No Tax Dollars for Encampments Act, requiring colleges and universities to disclose their policies for responding to demonstrations, riots, and strikes. If enacted, this bill would potentially withhold federal funding from universities that do not adequately disclose or comply with policies for addressing civil disturbances.
In addition, on May 19, 2024, the Department of Justice announced that it will use the False Claims Act to identify and investigate recipients of federal funds that it determines allow antisemitism to thrive and promote Diversity, Equity, and Inclusion (DEI) policies. Indeed, the EEOC’s new priorities also include rooting out what it refers to as DEI-based discrimination. Its updated website describes DEI-based discrimination as occurring when DEI initiatives, policies, programs, or practices involve an employer taking an employment action motivated in whole or in part by an applicant’s or employee’s race, sex, or other protected classification. This focus on DEI extends to the religious discrimination context, as a rising number of employees are claiming that being required to comply with DEI-based initiatives violates their religious beliefs.
Religious Bias and Antisemitism
One such pending case involving claimed religious bias connected with DEI is an amended lawsuit filed in Kansas federal court in January 2025, under the caption Sullivan v. United School District 512 (24-cv-2491). In Sullivan, the plaintiff teacher alleges that her employment at the defendant public school system involved her being required to make statements and teach lessons that violate her religious beliefs. Specifically, in 2021, the plaintiff objected, in writing, to the school district’s required DEI training sessions and incorporation of DEI principles into her lesson plans, stating that they were racist, anti-White, and anti-American. The plaintiff was later disciplined for using a student’s incorrect pronouns and allegedly engaging in gender identity discrimination. In addition to alleging violations of Sullivan’s constitutional rights of free speech and free exercise of religion, the Sullivan complaint alleges that defendants violated Title VII and its prohibition against retaliation against individuals who oppose harassment based on race and/or color. How the pending Sullivan case is decided may have an impact on the outcome of several other similar lawsuits alleging violations of Title VII based on religious discrimination and opposition to DEI practices.
Another recent case involving similar issues is Brown v. Alaska Airlines, which was filed in U.S. District Court, Western District of Washington in 2022 (22-cv-668). In Brown, the two plaintiff flight attendants filed suit against Alaska Airlines, alleging that they were discriminated against because of their Christian religion after their employment was terminated for posting comments on the Alaska Airlines internal website, which the airline deemed violated its antidiscrimination and antiharassment policies.
The Brown lawsuit alleged several violations of Title VII, including religious discrimination/ disparate treatment, failure to accommodate religious beliefs, hostile work environment, and retaliation. The district court in Washington ruled in favor of the defendants, finding that they were protecting other employees from hearing offensive ideas, and that the flight attendants’ comments were not protected by Title VII because not all Christians shared their views and that they merely reflected general ethical principles. The plaintiffs have appealed this decision to the U.S. Court of Appeals for the Ninth Circuit (24-3789), where the case is currently pending. A decision on this appeal may signal how courts will review certain Title VII claims.
In addition to such lawsuits, the EEOC has been involved in seeking information about antisemitism. For example, in April 2025, it was revealed that faculty members of Columbia University and Columbia-affiliated Barnard College received text messages from the EEOC asking them to complete a survey inquiring about whether they are Jewish or Israeli. It was reported that on April 15 Columbia had sent an email to its employees advising it had received a subpoena from the EEOC “in connection with an investigation into alleged harassment of Jewish employees at the University from October 7, 2023, to the present.” It is believed that this EEOC investigation at Columbia is ongoing.
Anti-American Discrimination
As noted above, the EEOC is also shifting the focus of its national origin discrimination enforcement to discrimination against Americans. In February 2025, coinciding with Lucas’s press release regarding protection of workers from anti-American discrimination, the EEOC announced a $1.4 million settlement of a lawsuit alleging national origin discrimination against American workers. EEOC v. LeoPalace Guam Corp. (D. Guam) (25-cv-00004). In that case, the Guam-based hotel LeoPalace Guam Corp. was alleged to have discriminated against non-Japanese employees, including many employees of American national origin, in terms of compensation and terms and conditions of employment. In addition to the monetary relief of more than $1.4 million, the settlement involved injunctive relief including compliance monitoring, training, and reinstatement of former employees.
Potential Concerns Going Forward
Employers should be aware of these new enforcement priorities articulated by the EEOC and be ready to defend against such allegations. While these changes reflect a difference of priority at the federal level, it does not impact prior court precedent on existing state and local laws addressing discrimination. These new enforcement priorities also do not alter the existing case law that private individuals may pursue to address liability under Title VII for organizations. What a new EEOC priority may impact going forward is the number of governmental investigations of organizations on addressing anti-American bias and antisemitism. To aide in this effort, employers should consult with counsel about revising policies and procedures to ensure that requests for religious-based accommodations are carefully evaluated and that all workers are subject to the same employment conditions regardless of national origin.
DOJ Civil Rights Fraud Initiative: FCA Enforcement Expanding Into Alleged Discrimination
On May 19, 2025, the U.S. Department of Justice (DOJ) announced a new Civil Rights Fraud Initiative that will leverage the federal False Claims Act (FCA) to investigate and litigate against universities, contractors, health care providers, and other entities that accept federal funds but allegedly violate federal civil rights laws.
The initiative will be led jointly by the DOJ Civil Division’s Fraud Section and the Civil Rights Division—with support from the Criminal Division, federal civil rights agencies, and state partners.
The initiative implements President Donald Trump’s Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (January 21, 2025), directing agencies to combat unlawful discrimination through the FCA, and complements Attorney General (AG) Bondi’s February 5 memorandum, “Ending Illegal DEI and DEIA Discrimination and Preferences.”
How DOJ Plans to Use the FCA to Combat Discrimination
DOJ signaled it will rely on the FCA’s “false certification” theory of liability: When a funding recipient expressly or implicitly certifies compliance with statutes such as Title VI or IX of the Civil Rights Act of 1964 (CRA) to obtain payment, any knowing violation that is “material” to the government’s decision to pay can trigger treble damages and statutory penalties under the FCA.
Deputy AG Todd Blanche issued a memorandum the same day (the “Blanche Memo”) underscoring that the FCA is implicated when a federal contractor or recipient of federal funds knowingly violates civil rights laws—including Titles IV, VI, and IX of the CRA—and falsely certifies compliance with those civil rights laws. The Blanche Memo, however, notes that liability does not attach to all diversity programs per se, but only when race, ethnicity, or national origin determines the allocation of benefits or burdens. This is significant because, even if an antidiscrimination false certification claim is assumed to meet the materiality standard, a diversity, equity, and inclusion (DEI) program should not be deemed improper if it does not “assign benefits or burdens on [the basis of] race, ethnicity or national origin.”
Enforcement Dynamics
Unlike many FCA matters, which often originate with whistleblowers (also known as qui tam relators) filing suit, we expect DOJ to initiate early cases itself, limiting defendants’ ability to oppose intervention or invoke typical qui tam defenses (e.g., first-to-file rule, public disclosure bar, and original source rule). DOJ nevertheless “strongly encourages” whistleblowers to come forward to report “instances of such discrimination”—a reminder that suspected violations may quickly morph into FCA investigations.
Courts will ultimately decide whether civil rights violations pass muster under the U.S. Supreme Court’s “rigorous” and “demanding” Escobar materiality standard.[1]
Key Takeaways
DOJ’s Civil Rights Fraud Initiative is poised to test the outer limits of the FCA. Whether courts embrace this expansion—or cabin it—is yet to be seen. In the meantime, entities receiving federal funds should assume heightened scrutiny and ramp up compliance efforts.
The Blanche Memo draws an uncertain line between “diversity” and “religion,” and even suggests that DOJ may apply the terms “race” or “racist” differently today than they were understood when Congress enacted the CRA. Courts, however, have yet to endorse the FCA as a generalized antidiscrimination vehicle, largely because the statute’s “rigorous” materiality standard remains a high hurdle. One district court observed that if the FCA is not an “’all-purpose antifraud statute,” it is “surely not an all-purpose antidiscrimination statute” either.[2]
When DOJ unveiled its Civil Rights Fraud Initiative, The New York Times predicted the program was “all but certain” to face immediate legal challenges. Even so, DOJ can bring FCA cases with relative ease and without many of the hurdles that slow private whistleblower suits: The government’s own complaints are immune from first-to-file and public disclosure bar defenses, and defendants cannot oppose DOJ intervention like they can in qui tam cases.
Implied certification cases are also unlikely to disappear. As we have advised previously, organizations that contract with—or receive funds from—the federal government should rigorously re-examine their contract terms and scrutinize DEI policies with counsel to ensure they would not be branded as “illegal DEI” under the FCA.
Importantly, DOJ’s new civil rights focus is one of several avenues through which the Trump administration can wield implied certification theories (e.g., compliance with cybersecurity requirements and Anti-Kickback Statute compliance, among others). Health care entities are squarely in the cross-hairs: We expect to see FCA investigations tied to Medicare and Medicaid reimbursement conditions, price-transparency obligations, and quality-of-care metrics—all areas where the administration argues that noncompliance fuels escalating federal costs. Because reining in health care spending enjoys strong bipartisan support, defendants should expect vigorous enforcement and limited political appetite to scale back those efforts.
Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this blog post.
ENDNOTES
[1] See Universal Health Services, Inc. v. United States ex rel. Escobar et al., 579 U.S. 176, 194 (2016). And while the government’s decision to expressly identify a provision as a condition of payment is relevant, it is not automatically dispositive under Escobar.
[2] U.S. ex rel. Lee v. Northern Metropolitan Foundation for Healthcare Inc., 2021 WL 3774185 (E.D.N.Y. 2021).