Among the many issues raised by President Trump’s Executive Order (EO) 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) targeting diversity, equity, and inclusion (DEI) programs is the prospect for civil False Claims Act (FCA) enforcement actions and whistleblower lawsuits against government contractors and grant recipients, related to alleged non-compliance with anti-discrimination laws. Language in EO 14173 directing the inclusion of language in contracts and grants related to the FCA highlights the potential for new theories of FCA liability.
In this post, we address the FCA enforcement implications of EO 14173.
EO 14173
On January 21, 2025, President Trump signed EO 14173, which revokes several long-standing executive orders focusing on nondiscrimination and affirmative action, and directs the Department of Labor’s Office of Federal Contract Compliance Programs to immediately cease holding contractors responsible for taking affirmative action in employment actions. EO 14173 followed EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”), issued the previous day, which calls for removing DEI and other such initiatives from executive branch agencies. On February 4, 2025, higher education organizations and the Mayor and City Council of Baltimore filed a lawsuit in Maryland District Court seeking to block the orders on First Amendment, Fifth Amendment, and other constitutional grounds.
EO 14173 expressly...
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