Appeals Court Strikes Down Background Circumstances Rule in Reverse Discrimination Lawsuits Under the New Jersey Law Against Discrimination in Federal Court

Background: Anti-Discrimination Statutes and the Background Circumstances Rule

Title VII of the United States Civil Rights Act of 1964 and the New Jersey Law Against Discrimination both prohibit employers from illegally discriminating against their employees.  Normally the evaluation is straightforward under the McDonnell Douglas Test.  However, in the case of reverse discrimination, i.e., where an employer is accused of discriminating against an employee who is in the majority, New Jersey and many Federal courts imposed a higher burden of proof on the employee.  In cases of reverse discrimination, employees in New Jersey state courts and many federal courts had to satisfy the “Background Circumstances Rule,” which requires that the employee prove that he “has been victimized by the unusual employer who discriminates against the majority.”  However, in 2025, the United States Supreme Court unanimously struck down the Background Circumstances Rule in Title VII cases in the case of Ames v. Ohio Department of Youth Services.

 

The U.S. Supreme Court Steps In

The New Jersey Supreme Court has not addressed the issue of whether the Background Circumstances Rule remains viable for the New Jersey Law Against Discrimination since Ames was decided.  However, it was recently brought before the United States Court of Appeals for the Third Circuit, which hears appeals from the federal district courts in New Jersey.  When a Federal court is deciding state law questions, its job is to anticipate how the state supreme court would rule on the issue.  In that case, Massey v. Borough of Bergenfield, the Third Circuit decided that the New Jersey Supreme Court would follow the United States Supreme Court’s Ames decision and strike down the Background Circumstances Rule.

 

Some Lousy Facts for Bergenfield

Sometimes the facts make the Law, and in this case the facts were very bad for Bergenfield.  The Plaintiff, Deputy Chief Christopher Massey, a white man, was passed over for promotion to Chief in favor of Captain Mustafa Rabboh, a lower ranked man of Middle Eastern ethnicity and Muslim faith.  The vote was 5-1 on the Council for the promotion, and the Defendants admitted that they took the applicants’ race into account, and that Massey had an unblemished disciplinary record and four years of management experience as deputy chief, while Rabboh was the subject of seven disciplinary complaints to the Bergenfield Police Departments Internal Affairs Bureau, received one disciplinary suspension, and had no management experience.

 

The Third Circuit’s Path

The appeal reached the Third Circuit on appeal from the District Court judge’s dismissal of Massey’s claims on summary judgment before the Ames decision ended the Background Circumstances Rule in the Federal courts.  Given that even under the Background Circumstances Rule the facts certainly raised sufficient questions of fact for the case to be submitted to a jury, the Third Circuit did not need to reach what the New Jersey Supreme Court would do – it would have simply been enough to say that under these facts the case deserved to go to the jury.

 

Where We Are Now

This case does not bind the New Jersey Supreme Court in interpreting New Jersey statutory law.  The Third Circuit merely predicted what it would do.  Should the New Jersey Supreme Court choose to continue the Background Circumstances Rule, it is free to do so.  In that case, cases brought under the New Jersey Law Against Discrimination in the Federal Courts would need to follow the New Jersey Supreme Court’s guidance.

However, the opinion makes clear that the Third Circuit takes a dim view of employment decisions which take race into account, and an even dimmer view of Diversity Equity and Inclusion as a basis for employment decisions.  The decision thus leaves it an open question whether in a similar case after the New Jersey Supreme Court upheld the Background Circumstances Rule the Third Circuit might again vacate it based on equal protection grounds.

 

The Bottom Line

The general practice is that employees want to keep their discrimination cases in State Court under the New Jersey Law Against Discrimination, while employers seek to have these cases transferred to Federal Courts because they are perceived as more employer friendly.  The Massey decision stands that logic on its head, at least in reverse discrimination in employment cases.  In in reverse discrimination cases, it would be wise for employees to file in Federal Court.  And whatever the outcome of the Background Circumstances Rule under the New Jersey Law Against Discrimination, it is dead letter under Title VII since the Ames decision.

 

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