Race Discrimination Does Not Become Legal With A Do-Over
Proving employment discrimination can be hard. An employee rarely gets an email from the employer announcing, “We made this hiring decision because of your race.” Employment lawyers usually have to prove discriminatory intent of race discrimination through suspicious timing, shifting explanations, better treatment of other employees, and other evidence.
Michael Sack allegedly got something considerably less subtle.
Sack applied to become St. Louis police commissioner. After other candidates dropped out of the testing process, Sack and one other candidate were the only two who received test scores and completed the process to be considered. Sack allegedly scored 100, ranked first on the eligibility list, and was certified for the position. Both remaining candidates were white men.
Then Mayor Tishaura Jones allegedly announced that she was “not going to pick” either candidate because she “only had two white male candidates to choose from and St. Louis is more diverse than white males.” The City later started a new search with lower minimum qualifications.
Well, that certainly narrows the search for evidence of discriminatory motive.
If an employer makes a hiring decision because of an applicant’s race, that is race discrimination: treating a person differently in employment because of race. Calling the decision “diversity” does not change what happened. If race allegedly caused the employer to reject a candidate, discard the hiring process, or restart the search to obtain a different racial result, race was not merely part of the background. It was the stated reason for the decision.
Sack sued Jones and Daniel Isom for race discrimination in violation of the Equal Protection Clause. The case was still at the pleading stage, so Sack had not yet proven his allegations. The United States Court of Appeals for the Eighth Circuit was required to accept his allegations as true and draw reasonable inferences in his favor in deciding whether Jones and Isom were entitled to qualified immunity. Sack v. City of St. Louis, No. 25-3044, 2026 U.S. App. LEXIS 27347, at *1–4 (8th Cir. Sept. 4, 2026).
The Eighth Circuit Court of Appeals affirmed the denial of qualified immunity. Applying the same framework used for Title VII employment discrimination claims, it held that Ricci v. DeStefano clearly established that “invalidating the results of an established hiring process based on race is unlawful.” Sack, 2026 U.S. App. LEXIS 27347, at *5–6.
Starting over did not make the alleged racial motivation disappear.
Legal Takeaways
- An employer cannot make an adverse employment decision because of an employee’s race simply because the employer wants a more racially diverse result.
- The Eighth Circuit Court of Appeals held that allowing an employee to compete again does not erase the alleged discrimination caused by discarding the original hiring process for racial reasons
Can An Employer Refuse To Hire Me Because It Wants More Racial Diversity?
No. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of race. It does not identify one race that gets protection and another that does not. Race discrimination against a white employee is still race discrimination.
That principle is central to Sack. The Eighth Circuit Court of Appeals held that employment discrimination claims under the Fourteenth Amendment are analyzed under a framework parallel to Title VII. It relied directly on Ricci v. DeStefano, 557 U.S. 557 (2009), where white firefighters challenged a city’s decision to discard promotional test results because the racial results were not what the city wanted.
According to Sack’s complaint, Jones was not subtle about the role race allegedly played. She stated that she was “not going to pick” either certified candidate because she had “only two white male candidates to choose from and St. Louis is more diverse than white males.” Sack, 2026 U.S. App. LEXIS 27347, at *2.
Wanting diversity, while an admirable goal, does not make that alleged racial consideration disappear.
In Ricci, the Supreme Court confronted a similar problem. A city rejected firefighter promotional test results because “too many whites and not enough minorities would be promoted” if the results were certified. Ricci, 557 U.S. at 579. The Supreme Court held that, “[w]ithout some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.” Id.
Notice what that rule does not say: because of an individual’s race, unless the individual is white.
The Eighth Circuit Court of Appeals therefore held that Ricci clearly established that “invalidating the results of an established hiring process based on race is unlawful.” Sack, 2026 U.S. App. LEXIS 27347, at *5.
The defense argued that Sack was never entitled to the promotion. But the Eighth Circuit Court of Appeals rejected that reading of Ricci. The firefighters in Ricci were not all guaranteed promotions either. The adverse employment action included denying them an established route to promotion because of race.
An employer does not get to establish a hiring process, see which races emerge as the successful candidates, and then decide whether it likes the racial result enough to honor the process. Diversity may be the employer’s stated objective. Using an applicant’s race against that applicant is still race discrimination.
Practical Tip: If an employer mentions your race when explaining why you were not hired or promoted, preserve the exact statement, who made it, when it was made, and who heard it. The decisionmaker’s own words can be powerful evidence that race affected the employment decision.
Best Race Discrimination Attorney Blogs on Point:
Can My Employer Fix Race Discrimination By Starting The Hiring Process Over?
No. If an employer abandons an established hiring process because of race, allowing the employee to compete again in a new process does not necessarily cure the discrimination that already occurred.
The defendants argued that Sack had not suffered an adverse employment action because he remained under consideration after the City reopened the search. He still had another opportunity to compete for police commissioner.
The Eighth Circuit Court of Appeals rejected that argument.
Sack alleged that the original process left him as the highest-ranked and only eligible applicant after the other certified candidate retired. He also alleged that the City’s Civil Service Rule permitted additional candidates only if the appointing authority was unable to fill the vacancy from the existing list. According to Sack, the only reason the City could not fill the position from that list was its decision to discriminate based on race.
Instead of completing that process, the City reopened the search and lowered the minimum qualifications.
That was not simply another opportunity. According to Sack’s allegations, it was a worse opportunity created because the employer did not like the racial result of the better one he already had.
The Eighth Circuit Court of Appeals held that Ricci defeated the defendants’ argument. The adverse action there occurred when the employer refused, for racial reasons, to honor the results of an established promotional process. The firefighters did not have to prove that they were forever barred from future consideration.
The Eighth Circuit Court of Appeals put the rule directly: “The ability to compete in a new search process, engineered for reasons of race, does not avoid a violation of equal protection in the first hiring process.” Sack, 2026 U.S. App. LEXIS 27347, at *8.
An employer cannot necessarily erase alleged race discrimination with a reset button. If race was the reason for the do-over, the do-over may itself be the problem.
Practical Tip: If your employer cancels or restarts a hiring or promotion process after you qualify, preserve both versions of the process. Keep the original and revised job postings, qualifications, rankings, test results, eligibility lists, and communications explaining why the employer started over.
Best Wrongful Failure to Hire Attorney Blogs on Point:
Does Hiring Someone Of My Same Race Defeat My Discrimination Claim?
No. Hiring someone of the same race does not automatically defeat a race discrimination claim. The proper question is whether race motivated the particular employment decision that harmed the employee.
The defendants had a seemingly powerful fact. In the reopened search, the City selected four finalists: Sack, two black candidates, and Robert Tracy, who was white. The two black candidates withdrew. Tracy ultimately got the job.
So a white man got the position Sack claimed he was denied because he was white.
But that targets the wrong decision.
Sack challenged what allegedly happened before Tracy was selected. He alleged that the original hiring process produced two certified white male candidates and that Jones refused to select either because of their race. The City then abandoned that process and created a new one.
The Eighth Circuit Court of Appeals held that Sack plausibly alleged that officials “reopened an application process and changed its requirements because the two resulting candidates were white.” Sack, 2026 U.S. App. LEXIS 27347, at *4.
That alleged employment action had already occurred before Tracy was hired.
A later white hire does not retroactively make an earlier race-based decision race-neutral.
The race of the eventual hire may be relevant evidence. It simply does not answer the decisive question by itself. If the challenged decision was abandoning the original process because the certified candidates were white, then the issue is why that original decision was made.
In Sack’s complaint, the alleged answer came from Jones herself.
Practical Tip: If an employer responds to your race discrimination complaint by pointing out that it hired someone of your race, identify the specific employment decision that harmed you. Preserve evidence showing who made that decision, what was said at the time, and whether the employer’s process changed because of race.
Best Employment Discrimination Law Firm Blogs on Point:
What Should I Do If My Employer Says Race Affected A Hiring Decision?
Preserve the evidence. If an employer, supervisor, or decisionmaker tells you that race affected a hiring or promotion decision, save the email, text, recording, or other communication if you lawfully possess it. If the statement was verbal, write down the exact words, date, location, and everyone who heard it. Then talk with an experienced employment lawyer about whether the facts support a race discrimination claim.
Spitz, The Employee’s Law Firm, is one of the largest law firms in the United States dedicated to representing employees. Our attorneys focus on employment law and represent employees facing race discrimination, hiring discrimination, wrongful termination, retaliation, harassment, and other unlawful workplace conduct.
Evidence of discrimination is rarely as obvious as an employer expressly mentioning race. Our employment lawyers know how to investigate what happened before and after the challenged decision, compare the employer’s stated reasons with its actual conduct, and identify the evidence needed to prove unlawful discrimination.
Spitz offers a free initial consultation and our No Fee Guarantee, which means you do not pay attorney fees unless we obtain a recovery for you. If you believe an employer used your race against you in a hiring, promotion, or other employment decision, contact Spitz to discuss your rights with an experienced employment discrimination attorney.
Frequently Asked Questions About Race Discrimination
Yes. Employment discrimination law prohibits adverse employment decisions because of race. The protection is not limited to employees of a particular race. The Eighth Circuit Court of Appeals applied the same employment discrimination framework used under Title VII in evaluating a white applicant’s claim that government officials acted against him because of race.
Do I have to prove I was guaranteed the job to bring a race discrimination claim?
No. An employee may suffer an adverse employment action even without a guaranteed right to the job or promotion. Denying an employee an established route to promotion because of race can itself qualify as an adverse employment action. The employee does not necessarily have to prove that the promotion was certain before the discriminatory decision occurred.
Can changing job qualifications be evidence of race discrimination?
It can be. If an employer changes minimum qualifications, selection criteria, or the applicant pool after learning who qualified under the original process, the reason for those changes may become important evidence. A change made because of race can support a claim that the employer interfered with an established hiring or promotion opportunity for discriminatory reasons.
Can losing a fair chance at a promotion count as an adverse employment action?
Yes. An adverse employment action is not limited to termination or an outright refusal to hire. An employee can be adversely affected when an employer denies an established opportunity to compete for or receive a promotion because of race, even if another hiring process later becomes available.
Can an employer change a hiring process after candidates have already been ranked?
An employer may have legitimate reasons to change or restart a hiring process, but race cannot lawfully be the reason for invalidating an established process. The Eighth Circuit Court of Appeals held that once an employer has established a process and made its selection criteria clear, it may not invalidate the results for racial reasons.
Employment Lawyer Disclaimer
This employee rights, race discrimination, hiring discrimination, and wrongful termination blog is provided for general informational purposes only and is not legal advice. Employment law varies based on the applicable federal, state, and local law and the specific facts involving each employee and employer. If you believe you were subjected to race discrimination, denied a job or promotion because of race, wrongfully fired, retaliated against, or otherwise denied workplace rights, consult with a qualified employment lawyer about your specific situation. Reading this blog, submitting information through our website, or communicating with Spitz, The Employee’s Law Firm does not by itself create an attorney-client relationship. Past results do not guarantee or predict the outcome of any future discrimination, retaliation, hiring, or wrongful termination case. No attorney or lawyer can promise a particular result. This blog may constitute attorney advertising or a legal advertisement under applicable rules.