Third Circuit Ames to Level Playing Field for Reverse Discrimination Claimants under New Jersey’s Law Against Discrimination

Since 1990, the New Jersey Supreme Court has held “majority-group” discrimination plaintiffs – those alleging they have been discriminated against in favor of member of a minority group – to a heightened standard of proof under the New Jersey Law Against Discrimination (NJLAD). Unlike other discrimination plaintiffs, non-minority employees have had to establish they were “victimized by the unusual employer who discriminates against the majority” as part of their burden of proving that their protected classification, such as race or age, was a motivating factor in an adverse employment action.¹ This additional requirement is known as the “background circumstances rule.” 

On June 5, 2025, in Ames v. Ohio Department of Youth Services, the United States Supreme Court unanimously struck down the background circumstances rule in cases under one of the NJLAD’s federal counterparts, Title VII of the Civil Rights Act of 1964. On March 6, 2026, in Massey v. Borough of Bergenfield, a unanimous panel of the U.S. Court of Appeals for the Third Circuit predicted the New Jersey Supreme Court would follow Ames to do the same under the NJLAD. 

Background – Ames and Massey

In Ames, a heterosexual woman sued her employer for sexual orientation discrimination under Title VII after she was demoted and a gay man was promoted to her position. Relying on the background circumstances rule, the district court dismissed the case on summary judgment, and the Sixth Circuit affirmed. The Supreme Court reversed, striking down the background circumstances rule as inconsistent with Title VII, as its text “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”²

In Massey, a white police officer sued the Borough of Bergenfield and five of its six councilmembers for race- and religion-based discrimination under the NJLAD after he was denied a promotion to police chief in favor of an Arab and Muslim officer in 2019. The plaintiff had joined the Bergenfield Police Department in 1995 and had risen through the ranks to become deputy chief. In that role, the plaintiff was responsible for up to 90% of the Department’s daily operations. At the time of the promotion decision, he was acting as the Department’s officer-in-charge after having been appointed to the position by the chief when she began medical leave before retiring.

The officer who was promoted in his stead joined the Department in 2023, eight years after the plaintiff, and had obtained the rank of captain. He was also the subject of seven internal affairs complaints and had received a four-day disciplinary suspension.

The five individual defendants were those who voted to promote the minority candidate over the plaintiff. All were members of minority groups, and they admitted to considering race and religion when making the promotion decision. One had told the plaintiff that he did not “look like the people in town” and another admitted he preferred the promoted candidate because he was a minority. The defendants cited diversity as one of their justifications for the promotion decision.

Despite this evidence, the district court granted the defendants’ summary judgment motion and dismissed the case, finding that the plaintiff did not meet the heightened pleading standard under the background circumstances rule or sufficiently rebut the defendants’ justifications for the promotion decision.

Third Circuit Concludes the Background Circumstances Rule Is Incompatible with the NJLAD

On appeal, the Third Circuit reversed, predicting that the New Jersey Supreme Court would follow Ames and abandon the background circumstances rule in NJLAD cases. The court also found that without the rule, the plaintiff had put forth sufficient evidence of potential discrimination to allow his case to go to a jury.

Noting that it had rejected the background circumstances rule in Title VII cases in 1999, the Third Circuit further observed that the New Jersey Supreme Court looks to federal law in interpreting the NJLAD, given the similarity in statutory text. Since both the NJLAD and Title VII afford protection to “any” – and therefore all – individuals, regardless of membership in a majority or minority group, the court concluded the New Jersey Supreme Court would follow Ames and abandon the background circumstances rule.

Implications for Employers 

Like the Supreme Court’s decision in Ames, the Third Circuit’s decision in Massey has further set the stage for a uniform application of employment discrimination law under both federal and state law for both majority and minority group employees. Although New Jersey state courts are not bound by Massey unless the New Jersey Supreme Court agrees with it, New Jersey employers may expect that employees suing for reverse discrimination under the NJLAD will use it and Ames to argue that they should not be held to the higher proof standard imposed by the background circumstances rule. Such employees may also begin pairing their NJLAD claims with federal discrimination claims to be able to sue in federal court and directly benefit from Massey’s holding. 

Massey also offers practical take-aways for employers when making employment decisions. The first is that merit-based decisions are easier to defend, regardless of the type of discrimination alleged, as by definition, they exclude consideration of protected classifications. Such decisions also may help foster positive employer-employee relations by eliminating perceived unfairness. The second is Massey’s reminder that at least in the Third Circuit, “a diversity preference is not a legitimate, non-discriminatory reason for an employment decision.”