March 24, 2026

By Ty Hyderally, Esq., Francine Foner, Esq., Aleisha Andino

The legal standard for “reverse discrimination” claims may be on the verge of major change in New Jersey. In Massey v. City of Bergenfield, 2026 U.S. App. LEXIS 6733 (3d Cir. Mar. 6, 2026), the Third Circuit predicts that the New Jersey Supreme Court will strike down the Background Circumstances Rule (“BCR”). The BCR is a doctrine that requires non-minority plaintiffs to meet a heightened burden in reverse discrimination cases. The Third Circuit’s prediction follows the United States Supreme Court’s recent decision in Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025), in which the United States Supreme Court rejected similar heightened standards under federal law.

Historically, New Jersey courts have imposed a higher evidentiary burden on plaintiffs who were members of a “majority” group (for example, white male employees) bringing discrimination claims. New Jersey’s version of the BCR requires these plaintiffs to “show that [they] have been victimized by an unusual employer who discriminates against the majority.” Massey at *1-2, (quoting Erickson v. Marsh & McLennan Co., 569 A.2d 793, 799 (N.J. 1990)). The rule functions as an additional hurdle, effectively making it harder for majority-group plaintiffs to make a prima facie case in “reverse discrimination” claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”). Id. at *9

In 2025, the United States Supreme Court unanimously rejected the BCR for claims under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Court held that Title VII protects “any individual” from discrimination, and nothing in the statute allows courts to impose a higher burden based on whether a plaintiff belongs to a majority or minority group. Id. at *10. The NJLAD statutory language mirrors that of Title VII, as both statutes prohibit discrimination against “any” person. Id. at *11.

In Massey, Christopher G. Massey, a white male, began working at the Bergenfield Police Department (“Department”) in 1995. Id. at *16. Throughout the years, Mr. Massey obtained various “promotions through the ranks of Sergeant, Lieutenant, and Captain.” Id. at *4-5.

In August 2019, the Council interviewed Mr. Massey and Mustafah Rabboh (“Mr. Rabboh”), a Muslim Palestinian man, for the position of Chief. Id. Mr. Rabboh ended up receiving the promotion to Chief of the Department. Id. at *4. The Bergenfield Borough Administrator told Mr. Massey that the Council’s decision was “all about race” and during a deposition, a Council member testified that it was “important to have a minority department head.” Id. at *6. The Court also stated in its opinion that “There is no dispute that diversity was a significant feature of remarks by public officials when Rabboh was sworn in.”  Id.

Mr. Massey filed suit in February 2020, alleging “racial and religious discrimination in violation of the NJLAD, 42 U.S.C. § 1983, and the Equal Protection Clause; and 42 U.S.C. § 1981” claims. Id. at *7. Defendants contended that their decision was based on non-discriminatory considerations such as interview performance, candidates’ qualifications, and “strategic planning as well as asserted interests in continuity for the Chief position and diversity.” Id. at *6.

Following discovery, the New Jersey District Court granted Defendants’ Motion for Summary Judgment, explaining that the plaintiff did not meet the BCR requirements for his NJLAD claim. The District Court also concluded that the plaintiff failed to rebut the Defendants’ justifications for their promotion decision adequately. Id. at *7. With respect to the § 1983 claim, the District Court granted summary judgment for Defendants “by reasoning that employment-related claims for race discrimination cannot be brought under that statute.” Id. The Court also reasoned that the § 1981 claim failed “because the statute does not provide for a private cause of action.” Id.

On appeal, the Third Circuit held that the BCR is incompatible with the text of the NJLAD, and since the language of the NJLAD mirrors Title VII, New Jersey courts should interpret the statute consistently with federal law, given the Supreme Court’s decision in Ames. Id. at *11, 27. The Third Circuit also found that there is a “strong argument that plaintiffs may advance an employment discrimination claim under § 1983 based on an Equal Protection Clause violation.” Id. at *31. The Third Circuit therefore reversed dismissal of Mr. Massey’s discrimination claims under the LAD and § 1983 and remanded the case for further proceedings. Id. at *32.

Whether the New Jersey Supreme Court will strike down the BCR remains to be seen, but the Third Circuit’s decision in Massey signals that it is likely that will be the case. If the New Jersey Supreme Court ultimately strikes down the BCR, the decision would significantly strengthen protections for majority-group employees bringing discrimination claims under the NJLAD. Eliminating the BCR would mean that all plaintiffs would face the same burden when attempting to establish a prima facie case of discrimination, regardless of whether they belong to a majority or minority group.

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