Massey v. Borough of Bergenfield: A Reversal in Reverse Discrimination Law

On March 6, 2026, the Third Circuit ruled in Massey v. Borough of Bergenfield that New Jersey’s approach to claims of reverse discrimination was irrevocably undermined by the U.S. Supreme Court’s ruling in Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025).  The upshot of the Third Circuit’s decision in Massey is that plaintiffs bringing reverse discrimination claims under the New Jersey Law Against Discrimination (NJLAD) no longer need to prove that she “has been victimized by an unusual employer who discriminates against the majority.”  Erickson v. Marsh & McLennan Co., 569 A.2d 793, 799 (N.J. 1990).  Instead, a plaintiff bringing a reverse discrimination claim under the NJLAD need only satisfy the familiar McDonnell Douglas framework: (1) membership in a protected class; (2) qualification for the position in question; and (3) circumstances supporting an inference of discrimination (e.g., similarly situated candidates outside the protected class were treated more favorably).  The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged decision, and if the employer does so, the plaintiff then must show that the employer’s proffered justification for its decision is false or not the real reason for its decision.

As this blog previously reported, in Massey, a white deputy police chief who had held the ranks of Sergeant, Lieutenant, Captain and Officer in Charge, applied to become Chief of the Bergenfield Police Department.  Following an interview process, the position was awarded to Mustafa Rabboh, an Arab-Muslim Captain.  During the swearing-in ceremony for Rabboh, Borough officials emphasized the importance of diversity.  Contending that the Borough based its decision on the fact that he was white (i.e. not a member of a minority group), Massey brought an action under the NJLAD, 42 U.S.C. § 1983, and 42 U.S.C. § 1981.  Applying settled New Jersey precedent, the District Court granted summary judgment in favor of the Defendants.  Specifically, the District Court ruled that, under the “Background Circumstances Rule” adopted by the New Jersey Supreme Court, Massey had to show that he was the victim of “an unusual employer who discriminates against the majority.” Concluding that he had not presented sufficient evidence to sustain his burden on this point, the District Court granted summary judgment in favor of the defense.  Massey appealed to the Third Circuit.

While his appeal was pending, the Supreme Court issued its decision in Ames, holding that the text of Title VII “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.”  The penultimate question before the Third Circuit was whether the New Jersey Supreme Court would follow Ames and hold that reverse discrimination plaintiffs asserting claims under the -NJLAD need not prove that they are the victims of the unusual employer who discriminates against the majority. 

Judge Bove, joined by Chief Judge Chagares and Senior Judge Scirica, wrote that the New Jersey legislature “left no room for courts to impose special requirements on majority-group plaintiffs alone.”  The “Background Circumstances Rule,” however, imposed a heightened burden on plaintiffs based solely on their majority status, contradicting the NJLAD’s text and purpose, which guarantee equal protection from discrimination regardless of race, religion or other protected traits. The unanimous panel found it significant that the “Supreme Court of New Jersey has on other occasions looked to the ‘federal experience’ to ‘assure some  reasonable degree of symmetry and uniformity.’” 

The Third Circuit’s holding in Massey realigns New Jersey law with federal judicial precedents in the reverse discrimination context.  Of course, Massey does not bind the New Jersey Supreme Court, since the Third Circuit decided the case without certifying the matter for resolution by New Jersey’s highest court.  It remains to be seen whether that court will agree that reverse discrimination plaintiffs must nonetheless shoulder a burden not shared by plaintiffs in the usual context of an employment decision favoring a member of the majority group.

If you have any questions about how this or any other appellate litigation development may affect your business, please contact the Hon. Thomas I. Vanaskie (Ret.) at thomas.vanaskie@stevenslee.com, Alexander V. Batoff at alexander.batoff@stevenslee.com or the Stevens & Lee attorney with whom you regularly work.