Failure To Hire And Race Discrimination Explained
You land the job. The employer says yes. You’re already picturing your first day, your paycheck, maybe even telling your family you finally caught a break. Then—just like that—the offer disappears. No explanation that makes sense. No real opportunity to respond. For many employees, that moment raises a serious question: was this just bad luck, or was this a race/color discrimination failure to hire?
Under employment law, that distinction matters—and it can mean the difference between moving on and holding an employer accountable for illegal conduct.
That question drove the case of Faulk v. Dimerco Express USA Corp., No. 24-12603, 2026 U.S. App. LEXIS 9983. Kenny Faulk, a Black employee with both a bachelor’s and a master’s degree in business administration, applied for a sales role. The employer offered him the job at a $90,000 salary, subject to a background check.
Then everything changed.
The background report identified Faulk as Black. Shortly after, the employer rescinded the offer. But that was not the full story. Evidence showed race discrimination—the employer’s leadership preferred white candidates and pushed that approach internally. Even worse, the employer later hired a white applicant with a more serious criminal record—after giving him a chance to explain it.
The employer refused to settled and chose to roll the dice at trial. That was a very bad decision. A jury found race discrimination and failure to hire, awarding $390,000 in damages and $3 million more in punitive damages. The employer appealed the race discrimination failure to hire verdict. The United States Court of Appeals for the Eleventh Circuit affirmed the verdict, holding that there was plenty of evidence to support the jury’s finding that the employer pulled the offer because of Faulk’s race.
That result sends a clear message: when an employer engages in employment discrimination, courts will not hesitate to hold them accountable.
Legal Takeaway
What Counts As Failure To Hire Under Employment Law?
A failure to hire occurs when an employer refuses to hire a qualified employee for an illegal reason—such as race discrimination—even if the employer claims another explanation. Title VII of the Civil Rights Act of 1964 makes it against the law for employers to take adverse employment actions against employees based on race, gender, national origin, religion, gender identity, or sexual orientation, while the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) protect against such actions based on age or disability. The failure to hire is one of the adverse employment actions.
In Faulk, the employee was not rejected at the start. The employer offered him the job. That matters because it proves he was qualified. The decision had already been made.
Then came the reversal.
The employer pointed to a background check. Employers often do that. It sounds legitimate. But in employment law, the question is not whether the employer can point to a reason, it is whether that reason is real. Here, the evidence told a different story.
The background report identifying Faulk as Black was sent to the company president. After that, the offer was rescinded. At the same time, testimony showed the employer had a pattern of rejecting non-white applicants and favoring white candidates, i.e. race discrimination.
This is how wrongful termination and failure to hire cases actually work. Employers rarely admit discrimination. Instead, they offer a neutral explanation. A skilled employment lawyer tests that explanation against the facts—and when the facts do not line up, the truth comes out.
Practical Tip: You do not need all the proof before speaking with an attorney. Most evidence of employment discrimination is controlled by the employer and uncovered through the legal process.
Best Failure To Hire Lawyer Blogs on Point:
Can An Employer Treat White And Black Applicants Differently In Hiring?
No. An employer cannot treat applicants differently based on race. That is textbook employment discrimination based on race.
But most employers do not say it out loud. They show it through different treatment.
In Faulk, the employer claimed it rescinded the offer because of a background check. But when a white applicant with four misdemeanor convictions applied, the employer handled it differently. He was given a chance to explain and was ultimately hired.
Faulk was not.
That inconsistency is exactly how race discrimination is proven.
The employer’s own internal response made it even clearer. When the discrepancy was questioned, leadership confirmed a preference for hiring white candidates. At that point, the employer’s explanation collapsed.
This is called comparator evidence, and it is one of the most powerful tools in employment law. When an employer treats similar employees differently, a jury is allowed to conclude the stated reason is not the real reason.
That is how employees win these cases—and why employers lose them.
Practical Tip: When an employer changes how it treats you during hiring—especially after showing interest—that shift can signal discrimination.
Best Race Discrimination Attorney Blogs on Point:
What Compensation Is Available In A Failure To Hire Case?
When an employee is wrongfully denied a job due to discrimination, the law allows recovery for lost wages, lost benefits, emotional distress, and sometimes punitive damages.
Start with lost wages. The law calculates what the employee would have earned. In Faulk, that meant the $90,000 salary tied to the job offer.
But it does not stop there. Courts also calculate the wage differential—the difference between what the employee should have earned and what they actually earned. If an employee takes a lower-paying job, the employer can be responsible for that gap. If the employee is unemployed, that full loss counts.
Benefits also matter. Health insurance, retirement contributions, and bonuses are part of compensation. When an employer engages in employment discrimination, those losses are included.
Then there is emotional harm. The Eleventh Circuit held that “a plaintiff’s testimony, standing alone,” can support emotional distress damages. Faulk testified that he felt “upset,” “angry,” and described the experience as “the hardest thing” he had faced. The jury awarded $300,000, and the court upheld it.
Courts rarely overturn these awards because they defer to the jury’s credibility findings.
This is where employment discrimination cases become significant. The financial loss is only part of the damage—the personal impact matters just as much.
Practical Tip: Keep records of your job search and income after being denied a position. That information strengthens your claim for lost wages and damages.
Best Employment Discrimination Law Firm Blogs on Point:
What Are Punitive Damages And How Do I Get Them In A Race Discrimination Case?
Punitive damages punish an employer for intentional discrimination and deter future misconduct.
In Faulk, the jury awarded $3 million—and the Eleventh Circuit upheld it.
That level of damages requires serious misconduct.
The employer’s leadership pushed a race-based hiring strategy and continued even after being warned it was illegal. That is not a mistake. That is intentional discrimination.
The Eleventh Circuit held that punitive damages are appropriate where conduct is “exceedingly reprehensible,” emphasizing that the seriousness of the employer’s actions is the most important factor.
The employer argued the award was excessive. The court rejected that argument and upheld the verdict.
This is where cases shift. Once punitive damages are in play, the risk to the employer increases dramatically—and so does the value of the case.
Practical Tip: Evidence that an employer knew its conduct was illegal and continued anyway can support punitive damages.
Best Workplace Discrimination Attorney Blogs on Point:
Do I Need A Lawyer For A Race Discrimination Or Failure To Hire Case?
If you are dealing with race discrimination, retaliation, wrongful termination, or failure to hire, you need an attorney who knows how to expose what the employer is hiding.
These cases are not won with guesswork. They are won with evidence—emails, hiring data, and internal decisions that employees cannot access on their own.
Spitz, The Employee’s Law Firm is one of the best firms in the country dedicated to employee rights. With significant resources, trial experience, and a proven track record, Spitz focuses exclusively on employment law and fighting for employees.
The firm offers free consultations and a no-fee guarantee. If you believe an employer treated you unfairly, speak with an experienced employment lawyer who can evaluate your claim and fight for the compensation you deserve.
Frequently Asked Questions
What is failure to hire in employment law?
Failure to hire occurs when an employer refuses to hire a qualified employee for an illegal reason such as race discrimination or retaliation.
Can an employee be wrongfully fired before starting a job?
Yes. A rescinded job offer based on discrimination can qualify as wrongful termination or failure to hire under employment law.
How do you prove race discrimination?
An employee proves race discrimination by showing different treatment or evidence that race influenced the employer’s decision.
What damages are available for employment discrimination?
Employees can recover lost wages, benefits, emotional distress damages, and punitive damages.
Can an employer be punished for discrimination?
Yes. Courts may award punitive damages when an employer intentionally engages in discrimination.
Employment Lawyer Disclaimer
This employee rights and workplace discrimination blog provides general information about employment law, including wrongful termination, failure to hire, race discrimination, retaliation, and employment discrimination. It is not legal advice. You should consult a qualified attorney or employment lawyer for advice specific to your situation. No promises are made. This blog is a legal advertisement and does not create an attorney-client relationship.