Third Circuit Rejects Heightened Burden for Reverse Discrimination Claims Under New Jersey Law

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The U.S. Court of Appeals for the Third Circuit has rejected the 'background circumstances' rule that previously required 'majority-group' plaintiffs alleging discrimination under the New Jersey Law Against Discrimination (NJLAD) to meet a heightened evidentiary burden. The court predicted the New Jersey Supreme Court would follow the U.S. Supreme Court's recent decision in Ames v. Ohio Department of Youth Services and abandon the rule, establishing a single standard for proving employment discrimination claims regardless of the plaintiff's protected status.

Why it matters

The Third Circuit's decision in Massey v. Borough of Bergenfield aligns New Jersey's anti-discrimination law with federal law, leveling the playing field for all employees alleging workplace discrimination. This may alter litigation strategies, but also reinforces the importance of making employment decisions based on merit rather than protected characteristics like race or religion.

The details

In Massey, a white police officer sued his employer, the Borough of Bergenfield, and several council members for race- and religion-based discrimination after he was passed over for a promotion in favor of an Arab and Muslim candidate with less seniority and a disciplinary record. Despite evidence that the defendants considered the officer's race and religion in making the promotion decision, the district court dismissed the case, finding the plaintiff did not meet the heightened 'background circumstances' standard required for 'reverse discrimination' claims under the NJLAD.

• On June 5, 2025, the U.S. Supreme Court unanimously struck down the background circumstances rule in cases under Title VII of the Civil Rights Act.
• On March 6, 2026, the U.S. Court of Appeals for the Third Circuit predicted the New Jersey Supreme Court would follow the Supreme Court's lead and abandon the rule under the NJLAD.

What’s next

The New Jersey Supreme Court will likely consider whether to adopt the Third Circuit's rejection of the 'background circumstances' rule under the NJLAD.