Bench & Bar November/December 2025

CONCLUSION It is critical for all employers to review their workplace initiatives, and for their counsel to closely monitor any additional updates so they can help ensure their clients remain compliant. Amidst an ongoing sea change in workplace discrimination enforcement and relevant legal authority, maintaining com pliance can be challenging. One way or the other, employers should carefully review all complaints of workplace harassment and discrimination, and they should take mea sures to ensure their employees are treated with kindness, dignity, and respect.

a Hard Look at Their Corporate Diversity Pro grams , Reuters (June 29, 2023), https://www. reuters.com/legal/legalindustry/with-supreme court-affirmative-action-ruling-its-time-com panies-take-hard-look-2023-06-29/. 41 Exec. Order No. 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025). Any organization receiving federal fund ing should be aware of this guidance as exposure under the FCA can involve sig nificant repercussions, like hefty civil fines, 52 treble damages, 53 and in some cases, even criminal liability. 54 The DOJ issued a mem orandum in July, 2025 that gives examples of DEI initiatives that might lead to an FCA investigation, as well as recommen dations on how to avoid FCA liability. 55 The recommendations are numerous, and any attorney representing federal funding recipients obviously should review them in detail before performing a privileged audit of your clients’ relevant programs, policies, and practices. 42 In EEOC Settlement, Four 'BigLaw' Firms Dis avow DEI and Affirm Their Commitment to Merit-Based Employment Practices, U.S. Equal Emp. Opportunity Comm'n (Apr. 11, 2025), https://www.eeoc.gov/newsroom/eeoc-settle ment-four-biglaw-firms-disavow-dei-and-af firm-their-commitment-merit-based. 43 Id. 44 EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination , U.S. Equal Emp. Opportunity Comm’n and Dept. of Justice (Mar. 19, 2025), https://www.eeoc. gov/newsroom/eeoc-and-justice-depart ment-warn-against-unlawful-dei-related-dis crimination. 45 See What You Should Know About DEI-Relat ed Discrimination at Work , U.S. Equal Emp. Opportunity Comm’n (Mar. 19, 2025), https:// www.eeoc.gov/wysk/what-you-should-know about-dei-related-discrimination-work. 46 Id. (cleaned up). As for the one-page guidance document, it contains a similar warning that, depend ing on the facts, “DEI training may give rise to a colorable hostile work envi ronment claim.” 50 The DOJ’s warning of training-based hostile work environment claims should be noted by practitioners. Practitioners should also note that, in May of 2025, the DOJ announced the creation of the Civil Rights Fraud Initiative, which will use the False Claims Act (“FCA”) to inves tigate and file claims against recipients of federal funds that knowingly violate federal civil rights laws, such as those “promot[ing] divisive DEI policies.” 51

parate-impact-a2e8aba11f3d3f095df95d488c 6b3c40. 35 See, e.g. , Nominations of Jonathan Berry, An drew Rogers, Anthony D’Esposito, and An drea Lucas: Hearing Before the Sen. Comm. on Health, Education, Labor and Pensions (June 18, 2025) (statement of Andrea Lucas, Nomi nee for EEOC Commissioner, at 38:30 – 41:44; 01:12:39 – 01:17:15) https://www.youtube.com/ watch?v=R8hz2xWpO4A. 36 See, e.g. , Nominations of Crystal Carey, Brittany Panuccio, and Dr. Brian Christine: Hearing Before the Sen. Comm. on Health, Education, Labor and Pensions (July 17, 2025) (statement of Brittany Ponuccio, Nominee for EEOC Commission er, at 43:32-44:31), https://www.youtube.com/ watch?v=2_D2LmiNGgU. 37 See, e.g., President Appoints Andrea R. Lucas EEOC Acting Chair, U.S. Equal Emp. Opportu nity Comm’n (Jan. 21, 2025), https://www.eeoc. gov/newsroom/president-appoints-andrea-r-lu cas-eeoc-acting-chair. 38 600 U.S. 181. 39 Johnson v. Transportation Agency, Santa Clara Cnty., Cal. , 480 U.S. 616, 638, 107 S. Ct. 1442, 1455 (1987) (citing Regents of University of Cal ifornia v. Bakke , 438 U.S. 265, 316–319, 98 S. Ct. 2733, 2761–2763 (1978)). 40 Commentary: With Supreme Court’s Affirmative Action Ruling, It’s Time for Companies to Take In the more detailed document, employ ers are warned that there are no “general business interests in diversity and equity” that would justify the implementation of an “initiative, policy, program, or practice [if it is] motivated—in whole or in part—by race, sex, or another protected characteristic.” 46 As one example of an unlawful practice, the guidance points to employer-sponsored clubs or groups in which membership is limited to employees belonging to a certain protected class. Employer “sponsorship” includes “making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation[.]” 47 The guidance also warns that the EEOC does not require a higher showing of proof for “reverse discrimina tion” claims, 48 and that depending on the facts, “an employee may be able to plausi bly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.” 49 one-page document titled “What to Do if You Experience Discrimination Related to DEI at Work.”

ABOUT THE AUTHOR

DANIEL R. GRAHAM is an attorney at Tachau Meek PLC, where he focuses his prac tice on commercial and

employment litigation and advises compa nies on compliance, risk management, and day-to-day employment issues. He received his undergraduate degree from Northern Kentucky University (B.A., 2013) and his law degree from the University of Louis ville, Louis D. Brandeis School of Law (J.D., cum laude , 2017). 47 Id . 48 See also Ames v. Ohio Dep’t of Youth Serv’s. , 605 U.S. 303 (2025) (unanimous opinion holding the “background circumstances” rule requiring majority-group plaintiffs to satisfy a heightened evidentiary standard in Title VII claims “can not be squared with the text of Title VII or the Court’s precedents”). 49 What You Should Know About DEI-Related Dis crimination at Work , U.S. Equal Emp. Oppor tunity Comm’n (Mar. 19, 2025), https://www. eeoc.gov/wysk/what-you-should-know-about dei-related-discrimination-work. 50 What to Do if You Experience Discrimination Related to DEI at Work , U.S. Equal Emp. Op portunity Comm’n (Mar. 19, 2025), https:// www.eeoc.gov/what-do-if-you-experience-dis crimination-related-dei-work. 51 Justice Department Establishes Civil Rights Fraud Initiative , Dept. of Justice (May 19, 2025), https://www.justice.gov/opa/pr/justice-depart ment-establishes-civil-rights-fraud-initiative. 52 See 31 U.S.C. § 3729; 28 CFR § 85.5. 55 Guidance for Recipients of Fed. Funding Regard ing Unlawful Discrimination , Mem. from Att’y Gen. Pam Bondi to Fed. Agencies (July 29, 2025), https://www.justice.gov/ag/media/1409486/dl. 53 31 U.S.C. § 3729. 54 18 U.S.C. § 287.

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