Will New Jersey Abandon the Background Circumstances Test for Reverse Discrimination Claims?

When Federal Predictions Meet State Precedent in New Jersey Employment Law

A police officer who had served in the Bergenfield Police Department since 1995 has inadvertently triggered a high-stakes legal showdown that could upend discrimination litigation across New Jersey. In March 2026, the U.S. Court of Appeals for the Third Circuit predicted in Massey v. Borough of Bergenfield that the New Jersey Supreme Court would abandon a three-decade-old legal hurdle known as the background circumstances test.

Published in the October 29, 2026, issue of the American Bar Association Litigation Section’s Corporate Counsel, the analysis highlights a growing fracture between federal interpretations of civil rights law and New Jersey’s distinct state jurisprudence. For more than three decades, majority-group plaintiffs filing reverse discrimination lawsuits under the New Jersey Law Against Discrimination faced a steep initial barrier. Before a case could move forward, these plaintiffs had to show specific background circumstances suggesting their employer was an unusual entity that discriminated against the majority.

That state-level requirement mirrors what federal courts once demanded under Title VII. But the legal ground shifted in 2025, when the U.S. Supreme Court unanimously ruled in Ames v. Ohio Department of Youth Services that Title VII does not contemplate a heightened evidentiary standard for majority-group plaintiffs. Writing for a unanimous court, Justice Jackson held that the statutory text protects “any individual” and leaves no room for courts to impose special requirements on majority groups alone.

The Bergenfield Police Promotion That Sparked the Legal Battle

The Third Circuit applied that federal reasoning to New Jersey state law in the Massey case, which centers on an officer who served in the Bergenfield Police Department and rose to the position of deputy chief. In 2019, the borough council promoted a captain, described in the record as an Arab-Muslim man, to chief. The evidentiary record featured remarkably direct statements from local officials. A council member told the plaintiff he did not “look like the people in the town,” while the borough administrator reportedly stated the decision was “all about race.”

When the borough moved for summary judgment, officials conceded they considered the successful candidate’s race and religion. Yet the district court still granted summary judgment by applying the Erickson v. Marsh & McLennan Co. standard. The Third Circuit reversed that decision, predicting that the New Jersey Supreme Court would rely on Ames and abandon the rule.

However, the federal appeals panel chose not to ask the state's highest court for a definitive answer. Under New Jersey court rules, the New Jersey Supreme Court may answer questions certified by the Third Circuit. By bypassing certification and relying purely on prediction, the federal court left employers and litigators dealing with an unstable split system where the governing standard can depend on whether a case is heard in federal or state court.

Why the New Jersey Supreme Court May Chart Its Own Course

While the Third Circuit’s forecast is defensible, it is not inevitable. The New Jersey Supreme Court has repeatedly affirmed that federal precedent guides but does not bind its reading of the NJLAD. In landmark decisions like Lehmann v. Toys ‘R’ Us, Inc. and Aguas v. State, the state’s highest bench noted its willingness to depart from federal frameworks when rigid application would be inappropriate.

New Jersey's current executive policy stands in contrast to the federal government's current policy.

Whether the state supreme court ultimately modifies the background circumstances test or crafts its own flexible standard, the practical reality for employers remains. The legal doorway for majority-group discrimination claims is wider than ever, and until the state’s highest court speaks definitively, courtroom strategy will remain a high-stakes guessing game.

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