At the Federal Bar Association’s Qui Tam Conference on February 19, 2026, Deputy Assistant Attorney General Brenna Jenny, the Department of Justice (DOJ) official leading nationwide False Claims Act (FCA) enforcement, provided new insights on DOJ’s use of the FCA to pursue diversity, equity and inclusion (DEI), which she referred to as discrimination. She reported: “DEI is a priority for us, and these cases are receiving expedited priority treatment.”
Jenny’s remarks underscore DOJ’s continuing focus on its Civil Rights Fraud Initiative, an effort it announced in May 2025 to use the FCA, with its treble damages and penalties, to investigate federal funds recipients’ DEI practices as violations of civil rights laws. DOJ previously announced this was a priority of the Civil Division.
Jenny reported that investigations involving corporate government contractors are among the busiest areas for both government‑initiated FCA cases and qui tam whistleblower filings. She specifically mentioned medical companies, major airlines and institutions of higher education. Jenny reported personally participating in a qui tam whistleblower, or relator, interview, highlighting the extraordinary level of attention these investigations are receiving at the highest levels of DOJ.
The Wall Street Journal reported in December 2025 that several contractors had received subpoenas about their DEI practices, but until this announcement, DOJ said very little publicly about these FCA investigations.
DOJ Flags Recurring DEI Fact Patterns
Jenny warned, “promoting diversity isn’t inherently unlawful, nor is it a protective talisman.” She identified three fact patterns she said DOJ is seeing repeatedly in DEI investigations:
- The creation and tracking of demographic goals where employee compensation is tied to achieving those goals.
- Executive training or mentoring programs where participation is based on prohibited characteristics.
- “Diverse slate” policies, whereby an organization commits to ensuring that the pool of candidates for a position includes individuals from underrepresented groups.
DOJ’s Expected Outcomes
Jenny offered insights into the resolutions DOJ is hoping to achieve in these matters. Alluding to DOJ’s formal policy of providing credit in FCA settlements for cooperation, self-disclosure and remediation, she said DOJ would approach the multiplier added to single damages in these cases using its “usual approach,” including taking into account cooperation, disclosure and “durable remediation suggesting a long-term commitment to reform.” She also noted DOJ’s focus on deterrence and said she would therefore “expect to see penalties” in these cases.
Practical Implications
Jenny’s remarks reinforce that DOJ, including senior management, is closely examining federal funds recipients’ DEI programs for alleged knowing violations of federal anti‑discrimination laws and is focused on changing corporate behavior through FCA investigations. Government contractors and grantees should consider this announcement of practices of concern and other DOJ articulations of the DEI practices it contends are illegal. They should consult with counsel concerning the many FCA defenses available and prepare to defend policies and practices that are important to them and/or for the possibility of DOJ investigations.
