Third Circuit Predicts New Jersey Will Abandon ‘Background Circumstances Rule’

Quick Hits

• The Third Circuit allowed a white police officer’s discrimination lawsuit to proceed, predicting that the Supreme Court of New Jersey would drop the “Background Circumstances Rule” requiring heightened proof for reverse discrimination claims.
• The ruling reflects a 2025 decision by the Supreme Court of the United States that rejected higher standards for majority-group plaintiffs in discrimination cases.
• A concurrence further criticized the “Background Circumstances Rule” as discriminatory and unconstitutional.

In Massey v. Borough of Bergenfield, the Third Circuit reversed a district court’s summary judgment ruling in favor of a New Jersey municipality in a racial and religious discrimination case brought by a “white male” police officer. The police officer, who had served as deputy chief and acting officer in charge of the borough police department, alleged he was unlawfully discriminated against when seeking a promotion to police chief after the municipality hired a candidate who is an “Arab-Muslim” male and who held the lower rank of captain.

The Third Circuit found that the police officer had sufficiently raised issues that entitled him to a trial on his claims brought under New Jersey’s Law Against Discrimination (NJLAD) and the Equal Protection Clause, 42 U.S.C. § 1983, but affirmed the dismissal of claims under 42 U.S.C. § 1981.

The Background Circumstances Rule

At the center of the case was the application of New Jersey’s “Background Circumstances Rule,” which places a heightened burden on a plaintiff from a majority group to “show that he has been victimized by an unusual employer who discriminates against the majority.” Such tests have made it more difficult for plaintiffs from a majority group (e.g., white, male, or Christian) to bring employment discrimination claims, or so-called reverse discrimination claims.

The district court granted summary judgment to the municipality, concluding that the police officer had not met the requirements of the “Background Circumstances Rule” and had failed to adequately rebut the municipality’s justifications for its promotion decision.

Following the district court ruling, the Supreme Court issued its June 2025 decision in Ames v. Ohio Department of Youth Services, rejecting such “background circumstances” rules and holding that plaintiffs from majority groups cannot be held to a higher standard of proof in employment discrimination cases under Title VII of the Civil Rights Act of 1964. In the unanimous opinion, the Supreme Court said that with Title VII, “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

Third Circuit Says New Jersey Will Follow Ames

With no New Jersey supreme court decision addressing New Jersey’s “Background Circumstances Rule” following Ames, the Third Circuit in Massey examined what the state supreme court would likely decide. The Third Circuit predicted that the New Jersey high court would, as the Supreme Court did in Ames, find that the rule “no longer has a permissible role to play in litigation under” NJLAD and scrap it. Further, the Third Circuit found that the rule’s “vagueness leaves it susceptible to arbitrary applications and inconsistent results.”

In reaching that conclusion, the Third Circuit recognized the Supreme Court of New Jersey’s reliance on federal law and that the NJLAD is a “mirror image” of Title VII. Like Title VII, “[t]he facial coverage of the NJLAD leaves no room for the Background Circumstances Rule,” the Third Circuit stated. In finding that the white male policer officer presented enough evidence to defeat the municipality’s summary judgment motion, the Third Circuit ruled that the municipality’s “naked invocation of a diversity preference is not a legitimate, non-discriminatory reason for an employment decision.” The court further observed that a jury could either “credit” defendants’ references to diversity as a “defensible policy aim—even though the comments are not, on their own, a lawful race-neutral justification for a challenged employment action” or regard them as “‘code words’ reflecting discriminatory intent.”

In a separate concurring opinion, Judge Emil Joseph Bove III, who also authored the opinion of the court, raised further arguments against the “Background Circumstances Rule.” Judge Bove argued that the rule is a “discriminatory application” of the NJLAD, and “plainly” violates the Equal Protection Clause, and criticized it for violating the racial neutrality in decision-making required by the antidiscrimination law without any legitimate justification. “Even if there was an interest sufficient to warrant the racial discrimination at issue, the Background Circumstances Rule is not ‘narrowly tailored’—meaning ‘necessary’—to achieve that interest,” Judge Bove stated in the concurrence.

Next Steps

The Massey ruling is the latest to criticize heightened pleading standards for employment discrimination claims brought by plaintiffs from majority groups. While the Supreme Court struck down such standards for Title VII claims, some states continue to impose similar requirements, but the Massey ruling suggests those standards could also be on the chopping block. At the same time, employers in New Jersey should note that the Third Circuit’s ruling is not a definitive statement of New Jersey law, and it is possible that the Supreme Court of New Jersey could keep the Background Circumstances Rule or some version of it.

Meanwhile, the Ames case, combined with the U.S. Equal Employment Opportunity Commission’s (EEOC) new enforcement priorities encouraging “white males” to come forward with employment discrimination claims, means employers are likely to see more claims from members of majority groups under both state and federal law.

Ogletree Deakins’ Morristown office and Diversity, Equity, and Inclusion Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and New Jersey blogs as additional information becomes available.

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