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Lawmakers press DOJ on reports that False Claims Act will target unlawful DEI practices
Summary
Ranking members pressed DOJ on prior remarks that DEI prosecutions would be prioritized; DOJ said it targets unlawful discrimination tied to contracting or certifications, citing FAR 52.222-26 and long‑standing anti‑discrimination law.
Members focused sustained questioning on whether the Department of Justice intends to use the False Claims Act to pursue alleged illegal discrimination tied to diversity, equity and inclusion programming.
Ranking Member Sykes cited DOJ remarks at a Federal Bar Association event and pressed Deputy Assistant Attorney General Brenna Jenny to explain how the department’s declared DEI priority fits among the FCA’s research‑fraud emphasis. Sykes said scientists deserve clarity on whether legitimate DEI programs could expose grantees to civil liability.
Jenny pushed back on characterizations that the approach is novel or politically motivated, arguing courts and Congress intended the FCA to be flexible. She said the department’s current focus in contested DEI matters is unlawful discrimination that violates long‑standing federal anti‑discrimination protections and can form the predicate for FCA claims when a contractor or grantee has certified compliance. She cited the Federal Acquisition Regulation provision numbered 52.222-26 as an example of rules that can underlie such liability and said, “The focus of our cases in this space has been on unlawful discrimination, violations of long‑standing federal anti‑discrimination protections.”
Committee members pressed Jenny on look‑back periods and whether universities running DEI programs that do not make personnel decisions based on protected characteristics face exposure. Jenny said the department evaluates whether a representation to the government was false and whether an underlying practice violated anti‑discrimination law—drawing a line between programmatic diversity efforts that do not unlawfully discriminate and conduct that does.
Members on both sides warned about consequences: some said aggressive enforcement could chill legitimate recruitment or outreach efforts; others argued enforcement is necessary where certifications to the government are false. The exchange ended with both sides agreeing that the legal line between lawful DEI programming and unlawful personnel discrimination is a matter of statutory and regulatory interpretation that may ultimately be litigated in courts.
No new DOJ policy was announced at the hearing; DOJ reiterated it will keep working with agencies and litigating cases where the evidence and law support FCA liability.
