AG Bondi’s Memo – An Open Door to Plaintiffs’ Employment Bar?
On May 19, 2025, pursuant to Executive Order 14173, Attorney General Pam Bondi issued a memorandum (“Bondi Memo”) outlining how the Department of Justice (“DOJ”) planned to enforce the Trump Administration’s crackdown on diversity, equity, and inclusion (“DEI”) programs. The memo is entitled “Civil Rights Fraud Initiative” and states that, among other things, DOJ would use the False Claims Act (FCA) as its “primary weapon” to enforce the Civil Rights Act of 1964, including Title VI, which prohibits discrimination on the basis of race, color, or national origin in federally funded programs.
Specifically, the Bondi Memo states that “any recipient of federal funds” that knowingly “violates the federal civil rights laws” might find itself defending an FCA suit launched by DOJ and other federal agencies. It goes further, stating that “a federal contractor or recipient of federal funds” that certifies compliance with federal civil rights laws while “knowingly engaging in racist preferences, mandates, policies, programs, and activities, including through diversity, equity, and inclusion [DEI] programs,” could face an FCA claim from DOJ (italics added).
All very scary.
But let’s not forget two things.
First, every human being, at least in this country, falls into a racial category. And while we know that the Bondi Memo and EO 14173 are intended to eliminate DEI perceived as violating White people’s civil rights, the Bondi Memo cannot explicitly state as such.
Second, the FCA allows for a private right of action with treble damages to the successful plaintiff.
Let’s pause right here. Just let those two points sink in.
Is it possible that the Bondi Memo just handed civil rights plaintiffs a powerful new tool – one that the Trump administration never intended?
Any private citizen (known as a relator) can bring an FCA lawsuit on behalf of the federal government against entities that defraud it. Usually, the FCA is directed to federal contractors who overbill or misuse federal funds. Until now, the FCA has not been used to enforce civil rights violations.
It’s true that a court might question the viability of using the FCA in this manner. For instance, do civil rights violations raise sufficient materiality under the FCA? Or, a court might say that the civil rights violation must be material to the government’s decision to pay. Or a court could say that intent can’t be proven, and that the FCA isn’t a personal injury statute or that racial discrimination does not rise to the level of “defrauding the government.”
All possibly true.
But then, enter Stage Left (actually, Exhibit 1)—the Bondi Memo.
DOJ is setting the standard and is now saying that civil rights violations—including those related to DEI—constitute false certifications. If that’s the case, then any racial discrimination, regardless (presumably) of who the victim is, could trigger FCA exposure.
Here’s the argument a bold plaintiff’s lawyer might now make:
“My client is a Black woman who was racially harassed and terminated by Federal Contractor X. Federal Contractor X certified compliance with civil rights laws in its bid and performance reports. But it engaged in a pattern of racist conduct – and knew it. That’s not just discrimination. That’s a false claim made to the federal government.”
Would it work?
Maybe. Maybe not? The claim would have to survive judicial scrutiny over materiality (was the violation important to the government’s funding decision?) and intent (was the certification knowingly false?). But those hurdles are no higher than the ones DOJ would have to clear if it brings the exact same claim against a DEI program it doesn’t like.
So, the Bondi Memo, in trying to use the FCA to punish race-conscious inclusion, might have just unlocked FCA access for those harmed by race-based exclusion.
The Corporate Reality: It’s Possibly Not Just About Schools Anymore
While Title VI, Title IX, and Title IV are commonly associated with educational institutions, the Bondi Memo states that it is directed at “many corporations” adhering to racist policies, and would seemingly apply to “any recipient of federal funds.” Presumably this could include:
Federal contractors across defense, tech, aerospace, logistics, and construction,
Hospitals and healthcare providers reimbursed by Medicare/Medicaid,
Research institutions and corporate recipients of federal R&D grants,
Nonprofits and vendors with pass-through federal subcontracts.
In short, many corporations – not just universities or financially-funded government programs would seemingly fall squarely within the Bondi Memo’s crosshairs.
Final Thought
Federal contractors (including any employers (e.g., suppliers) that receive federal funding), be on alert.
Not only might you have DOJ investigating or suing you under the FCA should you maintain DEI-type programs, but it’s also now possible that a creative plaintiffs’ attorney could add an FCA claim to a civil rights complaint—bypassing the EEOC route altogether. Because the FCA is not an employment statute, it does not require exhaustion of administrative remedies. Treble damages can be—and were designed to be—a powerful lure.
So what should you do? Curl up in a little ball and cry, “Damned if I do! Damned if I don’t!”?
No! Just do the right thing.
Don’t discriminate. Against any race. If you have DEI-type programs, make sure anyone can join them, not just members of the demographic at the focus. If there are benefits or mentorships tied to specific demographics, ensure they are accessible to employees outside those segments as well—perhaps by expanding eligibility through parallel programs or opt-in tracks.
And above all:
TRAIN. TRAIN. TRAIN.
Document performance reviews—whether formal or informal.
Strengthen your HR reporting systems.
And, do the hard work of holding all employees accountable. No one gets a pass.