Third Circuit to Decide Reverse Employment Discrimination Standard for New Jersey Cases
In Massey v. Borough of Bergenfield, argued before the U.S. Court of Appeals for the Third Circuit on Oct. 28, 2025, the parties dispute the legality of the current, employer-friendly, “background circumstances” test applied to reverse discrimination cases arising under the New Jersey Law Against Discrimination (NJLAD). New Jersey labor and employment attorneys on both the plaintiff and defense sides are eagerly awaiting the Third Circuit’s decision.
By way of background, in “traditional” employment discrimination cases under the NJLAD, the employee only needs to show evidence that could give rise to an inference of discrimination to meet their initial evidentiary burden. This standard is fairly lenient by design. For example, if a Black employee alleges that he experienced race discrimination because he was terminated from employment, the employee could meet this initial burden with evidence that he was replaced by someone of a different race.
By contrast, under the NJLAD’s heightened “background circumstances” test for reverse discrimination cases, an employee must demonstrate that “he has been victimized by an unusual employer who discriminates against the majority.” For example, in a gender-based reverse discrimination case, a male employee could not meet his initial burden if he was denied a promotion in favor of a female counterpart. Rather, he would need to show evidence of a rare company culture where men are systematically treated differently — and worse — than women.
In the Massey case, Christopher Massey, a white deputy chief police officer in a New Jersey borough, claims he suffered reverse discrimination when he was passed over for promotion to chief of police in favor of a Palestinian and Muslim officer, Mustafa Rabboh. The U.S. District Court for the District of New Jersey dismissed Massey’s case on summary judgment in Sept. 2024. The court found that statements about Rabboh’s minority status, the American Dream, and the value of diversity did not pass muster under the “background circumstances” test. If the situation were flipped and Rabboh had sued for discrimination, Massey’s promotion alone would have been enough to meet his initial evidentiary burden.
Massey appealed to the Third Circuit. After appellate briefing, but before oral argument, the U.S. Supreme Court found the “background circumstances” test unconstitutional under NJLAD’s federal equivalent, Title VII of the Civil Rights Act of 1964 (Title VII). The court made this unanimous holding in the “reverse” discrimination case of Ames v. Ohio Department of Youth Services, where a straight woman claimed she was denied promotion and later demoted due to her heterosexuality.
Not surprisingly, Ames was a hot topic during the Oct. 28, 2025, oral argument before the Third Circuit in Massey. The panel indicated that the Supreme Court’s rejection of the “background circumstances” test under Title VII required the same result under the NJLAD. For example, Chief Judge Michael A. Chagares asked, “Is the New Jersey Supreme Court free to put its imprint on the equal protection clause when the United States Supreme Court has weighed in?” Judge Emil J. Bove asked, “How could the New Jersey Supreme Court be free to interpret that statute in a way that violates the federal constitution?”
In response, the borough’s counsel argued that “the New Jersey Supreme Court, which has generally tended to be more liberal . . . with the employment laws in New Jersey,” could easily reach a different result. And while there was passing mention of certification of the question for resolution by the New Jersey Supreme Court, it was unclear if the Third Circuit panel was inclined to exercise that option. If the Third Circuit rules without certifying, its decision would be binding only on cases before district courts within the Third Circuit (i.e., New Jersey, Pennsylvania, Delaware and the Virgin Islands).
If you have any questions about how this or any other appellate litigation development may affect your business, please contact Alexander V. Batoff at alexander.batoff@stevenslee.com or the Stevens & Lee attorney with whom you regularly work.
Note: An audio file of counsel’s oral argument before the Third Circuit in Massey v. Borough of Bergenfield can be accessed here.
