On March 6, 2026, the Third Circuit Court of Appeals issued a significant decision in Massey v. Borough of Bergenfield, clarifying how discrimination claims brought by majority-group plaintiffs should be analyzed under the New Jersey Law Against Discrimination (“NJLAD”).
The Pre-Massey Background Circumstances Rule
By way of background, New Jersey courts have historically applied a background circumstances rule for so-called “reverse” discrimination cases under the NJLAD. Under this rule, plaintiffs who are members of traditionally advantaged groups had to “show that [they have] been victimized by an unusual employer who discriminates against the majority” as part of their prima facie case (the “Background Circumstances Rule”). This heightened evidentiary standard was adopted by the New Jersey Supreme Court from federal law outside the Third Circuit that developed a version of the Background Circumstances Rule for reverse discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Background Circumstances Rule represents a departure from the traditional burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires plaintiffs to show only that they were discriminated against based on their protected class. In New Jersey, the Background Circumstances Rule applied uniformly across protected classes including race, sex, and other protected characteristics, where the plaintiff belongs to the majority group.
Massey’s Discrimination Claim
Plaintiff Christopher Massey is a white male who served in the Bergenfield Police Department since 1995, rising to the rank of Deputy Chief and Acting Officer in Charge in 2019. Around that time, Massey was passed over for promotion to Chief in favor of another candidate, an Arab-Muslim male with the rank of Captain.
Massey filed suit against the Borough of Bergenfield (the “Borough”) asserting race and religious discrimination claims under the NJLAD, as well as under 42 U.S.C. § 1983 and the Equal Protection Clause, and 42 U.S.C. § 1981. The United States District Court for the District of New Jersey initially granted summary judgment in favor of the Borough, applying the Background Circumstances Rule and concluding that Massey had not demonstrated that the Borough was the type of “unusual employer” that discriminates against members of a majority group.
The Third Circuit Weighs In
On appeal, the Third Circuit faced the question of whether New Jersey’s background circumstances rule is viable after the Supreme Court’s decision in Ames v. Ohio Department of Youth Services,605 U.S. 303 (2025). Ames involved a heterosexual woman who worked for the Ohio Department of Youth Services since 2004 and was passed over for a promotion to Bureau Chief of Quality in favor of a gay woman. She was later demoted from her administrator role and replaced by a gay man. Ames filed an action alleging sex discrimination under Title VII. The Ames Court unanimously concluded that the Background Circumstances Rule “is not consistent with Title VII’s text or . . . case law construing the statute” and that Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”
Relying on the holding in Ames, the Third Circuit in Massey concluded that the Background Circumstances Rule “no longer has a permissible role to play in litigation under [NJLAD].” In reaching its conclusion, the Third Circuit explained that since New Jersey courts have yet to address this issue at the state level, the role of the Third Circuit was to “predict” how the New Jersey Supreme Court would decide the issue. The Third Circuit opined that the New Jersey Supreme Court would likely abandon the Background Circumstances Rule, since New Jersey courts often rely on federal law as interpretive authority, as it did in adopting its version of the Background Circumstances Rule. Additionally, the pertinent text from Title VII and the NJLAD are identical in that both statutes prohibit discrimination against “any” person, regardless of the person’s membership in a majority group. According to the Third Circuit, Ames made clear that Title VII was designed to eradicate all workplace discrimination and not impose special requirements on members of majority groups, and thus interpret the identical text in the NJLAD in the same manner.
Setting aside the Background Circumstances Rule and applying the traditional McDonnell Douglas framework, the Third Circuit found that Massey presented sufficient evidence to create a genuine dispute of material fact regarding the Borough’s motives in the promotion decision. The Third Circuit was particularly persuaded by the Borough’s concessions in their summary judgment motion that they “considered . . . race” when deciding on the promotion, as well as public statements by the Borough regarding its general desire to promote individuals who represent Bergenfield’s diverse population. The Third Circuit concluded that the Borough’s stated preference for diversity is not a legitimate, non-discriminatory reason for its promotion decision. The case is remanded for trial.
What to Expect in the Wake of the Massey Decision
The decision in Massey is significant for a number of reasons. First, Massey is the first federal appellate decision to apply the Ames holding to state law, signaling a shift in how the Background Circumstances Rule may be treated in other jurisdictions.
The decision also closely tracks the Equal Employment Opportunity Commission’s (“EEOC”) stated enforcement priorities aimed at eliminating DEI-motivated race and sex discrimination. The EEOC, despite having its lowest litigation record in 10 years, has filed two enforcement actions directly related to this initiative: EEOC v. Nike, Inc., No. 26-mc-00128 (E.D. Mo., Feb. 4, 2026)and EEOC v. Coca-Cola Beverages Northeast, Inc.,No. 1:26-cv-00115 (D.N.H. 2026), both seeking to enforce subpoenas for information related to the EEOC’s investigation into alleged unlawful DEI initiatives implemented by Nike and Coca-Cola, respectively. The overall messaging from the EEOC has been that there is no such thing as “reverse” discrimination, only discrimination, and that employment decisions motivated by any protected characteristic, including those made pursuant to DEI initiatives, are inherently unlawful under Title VII. The Third Circuit’s elimination of the Background Circumstances Rule now makes it easier for majority-group plaintiffs to make out a prima facie case of discrimination under the NJLAD, too.
As the EEOC continues to ramp up its enforcement efforts, courts will likely see an uptick in discrimination claims by majority-group plaintiffs at the state level as well. We will continue to monitor the application of the Background Circumstances Rule to other state discrimination statutes as both state and federal case law develop. If you have any questions about the topics discussed in this article, please contact Gina E. Nicotera at gnicotera@vedder.com or any Vedder attorney with whom you have worked.
