Ames-Driven Abolition of New Jersey’s “Background Circumstances” Burden in NJLAD Reverse-Discrimination Claims

Case: Christopher Massey v. Borough of Bergenfield
Court: U.S. Court of Appeals for the Third Circuit
Date: March 6, 2026

1. Introduction

This appeal arises from a failed-to-promote dispute in the Borough of Bergenfield Police Department. Christopher G. Massey, a white male and long-serving officer who had risen to Deputy Chief and served as Officer in Charge, was not promoted to Chief of Police in 2019. The Borough Council instead selected Mustafa Rabboh, an Arab/Palestinian Muslim male then holding the rank of Captain.

Massey sued the Borough and five Councilmembers who voted against him, alleging discrimination under (i) the New Jersey Law Against Discrimination (NJLAD), (ii) 42 U.S.C. § 1983 for an Equal Protection Clause violation, and (iii) 42 U.S.C. § 1981. The District Court granted summary judgment for defendants on all claims. The Third Circuit reversed in part, holding that Massey is entitled to trial on the NJLAD and § 1983 claims, while affirming dismissal of the § 1981 claim as pled.

The key doctrinal issue was whether New Jersey’s “Background Circumstances Rule”—a heightened prima facie burden imposed on non-minority (“reverse discrimination”) plaintiffs—remains viable under NJLAD after the U.S. Supreme Court’s unanimous rejection of the analogous Title VII rule in Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025).

2. Summary of the Opinion

Core holdings

  • NJLAD: The court predicts the Supreme Court of New Jersey would, in light of Ames v. Ohio Dep’t of Youth Servs., abandon New Jersey’s “Background Circumstances Rule” derived from Erickson v. Marsh & McLennan Co., 569 A.2d 793 (N.J. 1990). Without that heightened burden, Massey produced sufficient direct and circumstantial evidence to create genuine disputes of material fact, defeating summary judgment.
  • § 1983 / Equal Protection: Employment discrimination claims may be brought under § 1983 when based on a constitutional theory (Equal Protection), and the District Court erred in concluding otherwise. Summary judgment was improper on the evidentiary record.
  • § 1981: The § 1981 claim was defective as pled. Under Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), § 1983 provides the exclusive federal damages remedy for § 1981 rights against state actors; a municipality claim must be framed as a § 1983 claim satisfying Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). The Third Circuit affirmed dismissal.

Disposition

Reversed as to NJLAD and § 1983; affirmed as to § 1981; remanded for further proceedings.

Concurring opinion (Bove, J.)

The concurrence adds a constitutional critique: New Jersey’s Background Circumstances Rule, by imposing a heavier burden on majority-group plaintiffs, is itself discriminatory and “plainly” violates Equal Protection, invoking strict scrutiny principles and the Supreme Court’s insistence on racial neutrality in governmental decisionmaking.

3. Analysis

A. Precedents Cited (and how they shaped the decision)

1) The NJLAD framework and the now-rejected heightened burden

  • Peper v. Princeton Univ. Bd. of Trs., 389 A.2d 465 (N.J. 1978) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)): New Jersey’s early adoption of the McDonnell Douglas burden-shifting structure for NJLAD claims provided the baseline analytical “edifice” used by the parties and the court. The panel treats McDonnell Douglas as the shared method but insists it must be applied in a way consistent with statutory text and Supreme Court guidance.
  • Erickson v. Marsh & McLennan Co., 569 A.2d 793 (N.J. 1990) (citing Murray v. Thistledown Racing Club Inc., 770 F.2d 63 (6th Cir. 1985)): Erickson imported the federal “Background Circumstances Rule” into NJLAD, modifying the first McDonnell Douglas prong to require non-minority plaintiffs to show an “unusual employer who discriminates against the majority.” This created an asymmetric gatekeeping requirement that became “central” to the District Court’s summary judgment ruling.
  • Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999): The Third Circuit had previously rejected the federal version of the Background Circumstances Rule for Title VII as “problematic,” “unnecessary,” and “irremediably vague.” Massey relies heavily on Iadimarco’s textual and administrability concerns—particularly its warning that the rule invites arbitrary application—to justify predicting New Jersey will now abandon its state-law counterpart.
  • Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025): The doctrinal turning point. Ames unanimously held the Background Circumstances Rule is inconsistent with Title VII’s text and Supreme Court case law; Title VII “draws no distinctions” between majority- and minority-group plaintiffs. The Massey panel treats Ames as highly persuasive interpretive authority because the operative statutory language (“any” person) is identical in Title VII and NJLAD.

2) Erie prediction and New Jersey interpretive method

  • McKenna v. Pac. Rail Serv., 32 F.3d 820 (3d Cir. 1994): Frames the “delicate task” of predicting how a state’s highest court would decide an unresolved issue—here, how New Jersey would respond to Ames.
  • Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903 (N.J. 1990): Supports the proposition that New Jersey “looked to federal law as a key source of interpretive authority” for NJLAD, strengthening the prediction that New Jersey would track Ames on identical text.
  • New Jersey v. Grate, 106 A.3d 466 (N.J. 2015) and Crisitello v. St. Theresa Sch., 299 A.3d 781 (N.J. 2023): Cited for New Jersey’s statutory-interpretation commitment to plain meaning where text is unambiguous—crucial to the conclusion that “any” means any, leaving no room for differential burdens.
  • Nini v. Mercer Cnty. Cmty. Coll., 995 A.2d 1094 (N.J. 2010): Reinforces that NJLAD is applied to the full extent of its facial coverage—again pushing against judge-made limitations like the Background Circumstances Rule.
  • Wayne Moving & Storage of New Jersey, Inc. v. Sch. Dist. of Philadelphia, 625 F.3d 148 (3d Cir. 2010): Authorizes looking at statutory policy when making Erie predictions; used here to align NJLAD’s broad remedial purpose with Ames’s anti-asymmetry approach.
  • Bergen Com. Bank v. Sisler, 723 A.2d 944 (N.J. 1999): Supplies NJLAD’s strong anti-discrimination policy language (“eradication of the cancer of discrimination”) and also appears later for the pretext standard.
  • Taxman v. Bd. of Educ. of Twp. of Piscataway, 91 F.3d 1547 (3d Cir. 1996) (en banc): An example of the Third Circuit predicting New Jersey would follow Supreme Court analytical directives in parallel contexts; used to justify the predictive move that NJ will follow Ames.
  • Zanetich v. Wal-Mart Stores E., Inc., 123 F.4th 128 (3d Cir. 2024): Confirms that federal caselaw can inform predictive judgment about state law.

3) Summary judgment standards and the McDonnell Douglas mechanics

  • Mall Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622 (3d Cir. 2024) and Parker v. N.J. Motor Vehicle Comm’n, 158 F.4th 470 (3d Cir. 2025): Provide the governing Rule 56 framework (either affirmatively show undisputed facts entitle judgment, or show the nonmovant lacks proof on an essential element).
  • Marzano v. Comput. Sci. Corp. Inc., 91 F.3d 497 (3d Cir. 1996): Used for the conceptual structure of McDonnell Douglas and the notion that the prima facie case forces the employer to “show its hand.”
  • Zive v. Stanley Roberts, Inc., 867 A.2d 1133 (N.J. 2005): Critical on two fronts: (i) the prima facie burden is “slight” and considers only plaintiff’s evidence; and (ii) the pretext standard, quoting Fuentes, offers two routes—disbelieve employer reasons or infer discrimination more likely than not.
  • Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994): Provides the familiar articulation of pretext (“weaknesses, implausibilities, inconsistencies...”) and supports reversal because plaintiff produced evidence allowing a factfinder to disbelieve defendants’ stated reasons.
  • Hopp v. City of Pittsburgh, 194 F.3d 434 (3d Cir. 1999): Cited for the point that once defendants articulate non-discriminatory reasons, the prima facie case recedes in relevance.
  • Kautz v. Met-Pro Corp., 412 F.3d 463 (3d Cir. 2005): Reinforces that at summary judgment, plaintiff need not produce “affirmative evidence” of discrimination in addition to proof of pretext; proof undermining the stated reasons can suffice.
  • Willis v. UPMC Child.’s Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015) and Viscik v. Fowler Equip. Co., 800 A.2d 826 (N.J. 2002): Distinguish summary-judgment sufficiency from the trial burden: at trial plaintiff must prove the employer’s reason is false and discrimination is the real reason.

4) “Diversity” as justification and the constitutional backdrop

  • Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006): Supplies strict limitations on race-based governmental action, including that “societal discrimination” is insufficient and remediation requires prior intentional discrimination by the actor; also used to evaluate consent decree arguments.
  • Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013); Freeman v. Pitts, 503 U.S. 467 (1992); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986): Cited to reject “naked invocation” of diversity or racial balancing as a legitimate, non-discriminatory basis for an employment decision—especially for governmental employers.
  • Abramson v. William Paterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001): Used for the idea that “code words” can support an inference of discriminatory intent, making public diversity rhetoric potentially probative depending on context.
  • Shea v. Kerry, 796 F.3d 42 (D.C. Cir. 2015); Klawitter v. City of Trenton, 928 A.2d 900 (N.J. App. Div. 2007); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486 (3d Cir. 1999): Provide criteria for evaluating whether an affirmative action plan is valid; the panel finds Bergenfield’s EEO policy lacked the “basic ingredients” to serve as a race-neutral justification at summary judgment.

5) § 1983, Title VII preclusion concerns, and § 1981 municipal liability

  • Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416 (3d Cir. 2020) and Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir. 1990): Establish that § 1983 can be used to vindicate constitutional rights in employment contexts, directly contradicting the District Court’s categorical denial.
  • Williams v. Pennsylvania Hum. Relations Comm’n, 870 F.3d 294 (3d Cir. 2017): Clarifies the boundary: § 1983 cannot be used merely to bypass statutory remedial schemes (Title VII/ADA) when the claim is “purely statutory,” but it remains available for Equal Protection-based employment discrimination claims.
  • Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989); McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009); Monell v. New York City Department of Social Services, 436 U.S. 658 (1978): These cases collectively require that § 1981 rights against municipalities be enforced via § 1983, and municipal liability must satisfy Monell (policy/custom), not respondeat superior. Massey’s § 1981 count failed because it did not plead the correct vehicle/theory.

B. Legal Reasoning

1) The new state-law prediction: NJLAD must treat “any” person equally at the prima facie stage

The panel’s central doctrinal move is an Erie prediction: because NJLAD and Title VII contain identical operative text prohibiting discrimination against “any” person, and because New Jersey interpretive practice strongly tracks federal anti-discrimination law, the Supreme Court of New Jersey would follow Ames v. Ohio Dep’t of Youth Servs. and eliminate the heightened “Background Circumstances Rule” in NJLAD litigation.

The reasoning is deliberately textual and administrability-based: the Rule is incompatible with a statute that protects “any” individual, and its vagueness invites arbitrary and inconsistent application—precisely the critique lodged in Iadimarco v. Runyon. The panel also ties the prediction to NJLAD’s remedial purpose and New Jersey’s interest in symmetry and uniformity with federal law.

2) With the heightened burden removed, plaintiff’s NJLAD case survives summary judgment

The court articulates (without the Background Circumstances overlay) a three-part NJLAD prima facie failure-to-promote test: (1) qualification; (2) denial of promotion; (3) award to an applicant with similar or lesser qualifications (citing Andersen v. Exxon Co., U.S.A., 446 A.2d 486 (N.J. 1982)). Defendants conceded Massey was qualified. The record then supplied evidence from which a jury could infer discrimination, including defendants’ admission that they “considered Rabboh’s race and religion,” testimony that the decision was “all about race,” and deposition statements tying the selection to minority status.

On pretext, defendants offered multiple reasons (qualifications, interview performance, strategy, continuity, diversity). The panel concluded a reasonable jury could disbelieve each category based on record conflicts (e.g., alleged inattentiveness during Massey’s interview, competing testimony about who “crushed it,” evidence the strategic plan may have been derivative, and testimony that both candidates offered similar multi-year commitments). It emphasized that generalized “diversity” invocations are not, standing alone, a lawful race-neutral justification for a challenged employment decision, particularly for a governmental employer.

3) § 1983 claim: constitutional employment discrimination remains actionable

The District Court’s legal error was categorical: it treated employment race discrimination as non-cognizable under § 1983. The panel corrected that by distinguishing “pure” statutory claims (barred by Williams v. Pennsylvania Hum. Relations Comm’n) from constitutional claims. Because Massey pleaded an Equal Protection violation, § 1983 is an appropriate vehicle, and the same factual disputes that defeat summary judgment under NJLAD defeat it under the § 1983 equal protection theory as presented.

4) § 1981 claim: the pleading vehicle matters

The panel’s affirmance on § 1981 is a doctrinal housekeeping point with real consequences: claims against state actors for violations of § 1981 rights must be brought through § 1983 (per Jett v. Dallas Indep. Sch. Dist.). Municipal liability further requires a Monell policy/custom showing. Massey’s § 1981 count, as structured, did not do that, so dismissal was affirmed.

C. Impact

1) NJLAD litigation: “reverse discrimination” is no longer a separate, heightened category (predictively)

The most consequential aspect is the Third Circuit’s prediction that New Jersey’s highest court would abandon the Background Circumstances Rule under NJLAD. Practically, that means:

  • NJLAD plaintiffs who are not members of historically disadvantaged groups should not face a heightened prima facie burden requiring proof of an “unusual employer.”
  • Summary judgment disputes are more likely to turn on ordinary McDonnell Douglas issues—qualification, comparative treatment, and pretext—rather than threshold status-based gatekeeping.
  • Defendants can expect discovery and motion practice to focus more sharply on decisionmaker statements, admissions, comparative qualifications, and contemporaneous explanations, because the “background circumstances” screen will not filter cases early.

Although styled as a prediction, the decision is highly persuasive in federal NJLAD cases and will likely influence state-court litigants pressing for Erickson’s reconsideration.

2) Government employers: “diversity” rhetoric can become evidentiary fuel

The opinion draws a careful line: discussing diversity in a community-facing sense is not automatically unlawful, but it is not, by itself, a legitimate race-neutral justification for a particular adverse employment action. For government employers, the decision underscores that race-conscious explanations risk being treated as direct or circumstantial evidence of discriminatory motive—especially when accompanied by admissions that race or religion was “considered.”

3) Civil rights pleading: § 1981 claims against municipalities must be routed through § 1983/Monell

The affirmance on § 1981 reiterates a recurring trap: plaintiffs must plead the correct cause-of-action vehicle and theory when suing state actors. Future litigants will likely pair (i) § 1983 Equal Protection claims and (ii) § 1983 claims predicated on § 1981 rights (with Monell allegations), rather than stand-alone § 1981 counts.

4) The concurrence’s constitutional warning shot

Judge Bove’s concurrence escalates the stakes by framing the Background Circumstances Rule as itself unconstitutional racial discrimination in adjudicatory administration—i.e., a judge-made “selective” burden that triggers strict scrutiny. If adopted by later courts, that logic would not merely “reinterpret” NJLAD; it would constitutionalize the prohibition on asymmetric evidentiary burdens based on majority/minority status.

4. Complex Concepts Simplified

  • “Background Circumstances Rule”: A special rule that made it harder for “majority-group” plaintiffs to even get past the first step of discrimination analysis by requiring proof the employer was “unusual” in discriminating against the majority. This decision predicts that rule is no longer allowed under NJLAD after Ames v. Ohio Dep’t of Youth Servs..
  • McDonnell Douglas framework: A three-step method often used when there is no explicit “smoking gun.” Step 1: plaintiff shows a basic inference of discrimination; Step 2: employer gives a legitimate, non-discriminatory reason; Step 3: plaintiff shows that reason may be pretext (not the true reason).
  • “Pretext”: Evidence that the employer’s stated reasons are not credible—because they are inconsistent, implausible, or contradicted—allowing a jury to infer discrimination.
  • Equal Protection Clause (via § 1983): A constitutional claim that government decisionmakers treated someone differently because of race (or another protected trait). Unlike “purely statutory” discrimination claims, this is independently actionable under § 1983.
  • Monell liability: A municipality is not automatically liable for employees’ acts. The plaintiff must show the constitutional/statutory violation was caused by an official policy, custom, or decision by a final policymaker.
  • Erie prediction: When a federal court applies state law but the state’s highest court has not answered the question, the federal court predicts what that court would do—using state interpretive methods, policy, and persuasive authority.

5. Conclusion

Christopher Massey v. Borough of Bergenfield is principally a doctrinal correction with broad practical consequences: the Third Circuit predicts that, after Ames v. Ohio Dep’t of Youth Servs., New Jersey’s “Background Circumstances Rule” cannot survive under the NJLAD’s text protecting “any” person. With that heightened burden removed, the court held Massey produced sufficient evidence— including admissions and decisionmaker statements tying the promotion choice to race/religion— to require a trial. The court also reaffirmed that § 1983 remains available for constitutional employment discrimination claims, while reiterating that § 1981 claims against state actors must be pursued via § 1983 and, against municipalities, must satisfy Monell.

In the broader legal context, the decision signals a convergence of state and federal anti-discrimination doctrine around textual neutrality, skepticism of asymmetric evidentiary burdens, and heightened scrutiny of governmental race-conscious rationales— with the concurrence suggesting that unequal evidentiary rules themselves may raise Equal Protection concerns.