Client Advisory

Janelle N. Winters, Rachel S. Rubenstein, Randolph Portugal

In a significant development for employers, municipalities, and insurers operating within the Third Circuit, the U.S. Court of Appeals for the Third Circuit has held that New Jersey’s “Background Circumstances Rule” can no longer be applied to claims under the New Jersey Law Against Discrimination (NJLAD), The decision – Massey v. Borough of Bergenfield – brings New Jersey law into alignment with the U.S. Supreme Court’s 2025 decision in Ames v. Ohio Department of Youth Services, which unanimously rejected heightened burdens for majority-group plaintiffs under Title VII.

The ruling revives a lawsuit brought by Christopher Massey, a white Deputy Chief in the Bergenfield Police Department, who alleges that the Borough denied him a promotion to Chief in favor of a Captain of Arab-Muslim Descent based on race and religion. The District of New Jersey had granted summary judgment to the Borough in 2024, finding that Massey failed to satisfy the heightened prima facie showing required by the Background Circumstances Rule. The Third Circuit reversed in part, holding that the rule is incompatible with the NJLAD’s text and structure and that Massey presented sufficient evidence to proceed to trial.

Background

Massey joined the Bergenfield Police Department in 1995 and rose through the ranks to Deputy Chief. In 2019, while serving as Officer in Charge, he and Captain Mustafa Rabboh were interviewed for the Chief Position. After a closed-session interview process, five or six council members voted to promote Rabboh.

The record included several statements by Borough officials referencing race and diversity. Massey testified that the Borough Administrator told him that the decision was “all about race,” and multiple council members acknowledged that Rabboh’s minority status was an important factor. However, the Borough maintained that Rabboh was selected based on qualifications, interview performance, long-term strategic planning, and continuity.

Massey filed suit in 2020 alleging violations of the NJLAD, 42 U.S.C. § 1983, and 42 U.S.C. § 1981. The District Court dismissed all claims, including the NJLAD claim for failure to meet the heightened prima facie burden imposed by New Jersey’s Background Circumstances Rule. The Background Circumstances Rule provides that majority-group employees (e.g., white or male) claiming “reverse discrimination” under the NJLAD must meet a higher burden of proof, requiring a showing of more than mere discrimination but also a showing that the employer is biased against the majority.

The Third Circuit’s Analysis

The Third Circuit explained that New Jersey adopted the Background Circumstance Rule in 1990, requiring majority-group plaintiffs to show they were victimized by an “unusual employer who discriminates against the majority.” The rule was derived from federal appellate decisions that have since been repudiated.

In Ames, the U.S. Supreme Court unanimously held that Title VII “draws no distinctions between majority-group and minority-group plaintiffs,” and that courts may not impose special evidentiary burdens on white or male plaintiffs. Because the NJLAD’s operative language mirrors that of Title VII’s – prohibiting discrimination against “any” individual – the Third Circuit predicted that the New Jersey Supreme Court would follow Ames and abandon the Background Circumstances Rule.

The panel emphasized New Jersey’s longstanding practice of interpreting the NJLAD in harmony with federal anti-discrimination law and its consistent insistence that the statute be applied to the “full extent of its facial coverage.” The court also noted its own prior criticism of the federal Background Circumstance Rule as “problematic, vague, and unnecessary.”

With the heightened rule removed, the court applied the traditional three-part McDonnel Douglas framework. The Borough conceded that Massey was qualified for the promotion, and the record contained evidence that Rabboh had similar or lesser qualifications, including multiple Internal Affairs complaints and a disciplinary suspension.

The court found that Massey easily met the “slight” prima facie burden.

In addition, the Third Circuit held that Massey presented sufficient evidence for a jury to disbelieve the Borough’s stated reasons or to conclude that race or religion was a motivating factor. Key evidence included: (1) Defendants’ admission that they considered Rabboh’s race in the promotion decision; (2) testimony that the decision was “all about race”; (3) council members’ public remarks emphasizing the importance of appointing a minority Chief; (4) evidence that Massey’s interview was not taken seriously, including council members “playing on their phones”; and (5) testimony from the Mayor and another council member that Massey was more qualified. Based on this evidence, interpreted in a light most favorable to Massey, the court held that summary judgment was improper.

The case now returns to the District of New Jersey for trial.

Key Takeaways: This decision removes a decades-old barrier for majority-group plaintiffs bringing NJLAD claims and signals that New Jersey Courts will likely follow Ames in future cases. Employers should expect increased scrutiny of hiring and promotion decisions that reference diversity, representation, or demographic considerations. The ruling underscores the importance of consistent documentation, structured interview processes, and clear articulation of non-discriminatory rationales. Crucially, statements referencing diversity motivations, even when well-intentioned, may be used as evidence of discriminatory motive.