This Nutter memo provides additional information about the kind of DEI program practices that are likely to attract the DOJ’s attention. This excerpt cites remarks made by Brenna Jenny, Deputy Assistant Attorney General for DOJ Civil Division’s Commercial Litigation Branch, at the Federal Bar Association’s February 2026 Qui Tam Conference:

Jenny described three practices that DOJ views as encouraging decisions based on race or sex instead of merit and are thus likely to draw interest from DOJ. First, where companies deploy tracking systems to meet demographic metrics in hiring and staffing. DOJ does not view such tracking as remedying any identified discrimination, but instead shifts decisions away from merit in favor of numerical outcomes based on protected characteristics.

Second, where companies’ compensation decisions are influenced by race or DEI-related metrics. An example of this is where race is considered for the purpose of bonuses or salary increases.

Third, where company policies and procedures require employees to support DEI initiatives in connection with performance reviews, as such practices may pressure employees to support DEI policies and demographic objectives to avoid adverse employment outcomes.

Jenny also singled out employee training and mentoring programs with restrictions based on race or sex, saying that when access to such opportunities is restricted to certain groups, it effectively denies the benefits of membership in such groups to other employees. In DOJ’s view, this can lead to career advancement decisions being made on the basis of race or sex, and not on merit.

Additionally, Jenny raised concerns about “diverse-slate” requirements and preferential hiring practices, stating that DOJ is concerned with situations where employers relax experience or qualification standards only for certain candidates on the basis of race or sex.

The memo points out that federal agencies are now requiring contractors to provide updated certifications regarding anti-discrimination practices consistent with Executive Order 14173, which requires agencies to include in every contract or grant award “[a] term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the FCA]” and “[a] term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

– John Jenkins