U.S. embassies in certain European countries, including France, Denmark, Belgium, Italy, and Spain, have reportedly sent letters to contractors requesting that they certify that they do not operate any diversity, equity, and inclusion (“DEI”) programs that violate U.S. anti-discrimination law, and to agree that such certifications are material for purposes of receiving payment from the U.S. government under the federal False Claims Act.
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As we previously discussed, on January 21, 2025, President Trump signed Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which, among other things, “order[s] all agencies to enforce [U.S.] longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” As part of that effort, all federal contracts will be required to include a term certifying that federal contractors “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” as well as an agreement that this certification is material for purposes of federal False Claims Act liability.
The U.S. embassy letters to contractors operating in certain European countries were reportedly sent around the end of March 2025, and request that all U.S. Department of State contractors provide the certification. On April 1, 2025, in response to complaints raised by foreign governments, the State Department reportedly sought to clarify that the certification requirement only applies to companies that are controlled by a U.S. entity and that employ U.S. citizens.
As U.S. Equal Opportunity Employment Commission guidance explains, federal anti-discrimination law (including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act) applies only to employees who work in the United States, as well as to U.S. citizens who are employed outside the United States by a U.S. employer or a foreign company controlled by a U.S. employer. Additionally, U.S. employers are not required to comply with federal anti-discrimination laws if adherence would violate a law of the country where the workplace is located.
Employers should continue to closely monitor the changing political and legal landscape in this area.