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Throughout 2025, the Trump Administration communicated that it considered Diversity, Equity, and Inclusion (DEI) programs legally suspect. Executive Order 14173 declared that DEI programs “violate the text and spirit of our longstanding Federal civil-rights laws” and directed agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” The EO invoked the False Claims Act to signal substantial financial exposure for federal contractors, and the Department of Justice established a Civil Rights Fraud Initiative to pursue claims. Throughout 2025, federal agencies presented Government contractors with EO 14173 certifications, requiring contractors to agree that compliance with federal antidiscrimination laws is material to the Government’s payment decisions under the FCA and at testing that any DEI programs do not violate federal antidiscrimination law. Many companies responded by undertaking privileged reviews of their DEI programs and, in some cases, rolling them back.

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More recently, however, DOJ has vocally affirmed that DEI programs can in fact be lawful. At the Federal Bar Association’s False Claims Act conference on Feb. 19, 2026, Deputy Assistant Attorney General Brenna Jenny from DOJ’s Civil Division stated plainly: “Let me start by making absolutely clear, DOJ Civil Fraud is not investigating companies for having a DEI program.” (https://news.bloomberglaw.com/in-house-counsel/ doj-focuses-on-dei-practices-that-sway-employment-decisions.) She emphasized that companies “can engage in discrimination with or without DEI programs” and “can also operate a DEI program without it being discriminatory.” Instead, she explained that DOJ’s investigations focus on “companies that implemented programs and practices that pressured supervisors and management to make hiring and promotion decisions based on race or sex,” including setting and tracking demographic goals, tying executive compensation to diversity metrics, and requiring employees to set DEI-related goals that affect compensation and promotion. In Fourth Circuit litigation, DOJ conceded that there is ‘‘‘absolutely’ DEI activity that falls comfortably within the confines of the law.” (Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, slip op. at 26 (4th Cir. Feb. 6, 2026) (Diaz, C.J., concurring).)

To read the full article, please click <a href="https://admin.blankrome.com/wp-content/uploads/2026/03/govtcont_68_10_56.pdf">here</a>.

"Living With The EO 14173 Certification Requirement For Federal Contractors, One Year In," by Dominique L. Casimir and Sara N. Gerber was published in <a href="https://admin.blankrome.com/wp-content/uploads/2026/03/govtcont_68_10_56.pdf">The Government Contractor</a> on March 11, 2026. Reprinted with permission.<a href="https://www.linkedin.com/feed/?linkOrigin=https%3A%2F%2Fwww.blankrome.com%2F&amp;shareActive=true&amp;text=Living%20With%20The%20EO%2014173%20Certification%20Requirement%20For%20Federal%20Contractors%2C%20One%20Year%20In&amp;shareUrl=https%3A%2F%2Fwww.blankrome.com%2F%2Fpublications%2Fliving-eo-14173-certification-requirement-federal-contractors-one-year" target="_blank" rel="noreferrer noopener"></a>

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Living With The EO 14173 Certification Requirement For Federal Contractors, One Year In

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