In a March 6, 2026 decision, the U.S. Court of Appeals for the Third Circuit predicted that the New Jersey Supreme Court would no longer apply the judge-made “Background Circumstances Rule” to majority group discrimination claims under the New Jersey Law Against Discrimination (“NJLAD”). The NJLAD is New Jersey’s principal anti-discrimination statute and, like Title VII, prohibits employers from discriminating on the basis of protected characteristics such as race, religion, sex, and national origin.
The “Background Circumstances Rule” had long imposed an added burden on so-called “reverse discrimination” plaintiffs (typically white, male, or otherwise majority-group employees) at the first stage of a discrimination case. Under that rule, such a plaintiff had to do more than show he was qualified and denied an employment opportunity; he also had to show “background circumstances” suggesting he worked for the unusual employer that discriminates against the majority. In Massey, the Third Circuit concluded that this heightened prima facie burden is incompatible with the text of the NJLAD, which, like Title VII, protects “any” person.
That conclusion was driven by the U.S. Supreme Court’s 2025 decision in Ames, which rejected the analogous federal rule under Title VII. Because New Jersey courts often look to federal anti-discrimination law when interpreting the NJLAD, the Third Circuit predicted that the New Jersey Supreme Court would follow the same approach and abandon New Jersey’s version of the rule as well.
The court therefore evaluated plaintiff Christopher Massey’s failure to promote claim under the ordinary NJLAD framework and held that genuine factual disputes precluded summary judgment. In other words, the court held the case should go to a jury rather than being dismissed before trial. The record included evidence that defendants conceded they considered the successful candidate’s race and religion, along with testimony that the decision was “all about race” and that the successful candidate was preferred in part because “he’s a minority.” On that record, the court held a jury must decide the claim.
The Third Circuit also revived Massey’s claim under 42 U.S.C. § 1983, which allows plaintiffs to sue state or local officials for alleged violations of constitutional rights, including Equal Protection. The court reaffirmed that public sector employment discrimination claims may proceed under § 1983 when they are based on an alleged constitutional violation rather than a purely statutory claim under Title VII or a similar statute. But it affirmed dismissal of Massey’s claim under 42 U.S.C. § 1981, holding that when a plaintiff sues a state actor for violation of rights protected by § 1981, § 1983 is the exclusive vehicle for seeking damages.
What makes Massey important
Massey is significant because it undermines the longstanding New Jersey rule, derived from Erickson v. Marsh & McLennan, that imposed a heightened prima facie burden on majority-group NJLAD plaintiffs. In doing so, it removes a special obstacle that had applied only to certain plaintiffs based on their perceived majority-group status.
The opinion does not come from the New Jersey Supreme Court itself; rather, it is the Third Circuit’s Erie prediction of how that court would rule after Ames. That means the Third Circuit was not formally overruling New Jersey precedent, but instead predicting how New Jersey’s highest court would likely resolve the issue. That distinction matters doctrinally, but as a practical matter the decision is likely to influence NJLAD motion practice immediately, especially in federal court and in cases where courts are asked to evaluate whether a majority-group plaintiff has satisfied the first step of the discrimination analysis.
The decision is also a reminder that “diversity” cannot serve as a stand-alone, race-neutral justification for a specific employment decision. The court explained that a general desire to promote diversity is not, by itself, a legitimate nondiscriminatory reason for selecting one candidate over another. It further noted that diversity-related remarks, depending on context, may be viewed by a jury as evidence of discriminatory intent rather than as benign workplace language.
Practical takeaways for employers and public entities:
- Expect the same prima facie standard for all NJLAD plaintiffs. Employers should assume that majority-group plaintiffs will no longer face a special threshold showing in federal NJLAD cases, and that New Jersey state courts may ultimately move in the same direction.
- Document job related reasons carefully. Promotion and hiring decisions should be tied to qualifications, experience, interview performance, and role specific criteria that are contemporaneously documented.
- Avoid identity based rationale in decision making.Statements framing a promotion decision in terms of race, religion, or representational value can become direct evidence or strong circumstantial evidence of discrimination.
- Public employers should assess parallel constitutional exposure. A single personnel decision may now support both an NJLAD claim and a § 1983 Equal Protection claim, increasing litigation risk and expanding available theories of liability.
- Do not rely loosely on diversity policies or past consent decrees. In Massey, the court found the employer’s asserted diversity rationale, EEO policy, and consent decree references insufficient on the summary judgment record because they did not clearly justify or mandate the challenged promotion decision.
