During the Federal Bar Association’s annual Qui Tam conference in Washington, D.C., last week, Deputy Assistant Attorney General Brenna Jenny provided employers with valuable insights into how the DOJ intends to use the False Claims Act to target what it views as unlawful discriminatory practices of employers who receive federal funding.
While this legal theory has yet to be tested in the courts, employers should take note of what the DOJ is focusing on: Jenny emphasized that the DOJ does not intend to pursue federal fund recipients solely on the basis that they have DEI programs, but rather, whether such programs and other practices violate federal anti-discrimination laws.
Practices receiving significant DOJ scrutiny include:
- Internal targets to hire or promote a certain percentage of employees based on race or sex.
- Senior executive and/or recruiting manager bonuses based on reaching demographic targets.
- Inclusion of demographic based goals and evaluating employee performance based on achievement of the same.
- Programs (e.g., mentorship) that involve access to higher ups and limit participation based on race or sex. Even where these programs are “open to all,” the DOJ will look to see if participation is prioritized to certain protected groups.
- Programs that lower qualifications for members of protected classes while holding others to more demanding criteria.
These remarks serve as yet another reminder to employers to audit DEI practices for compliance with applicable law.