A White police officer who lost out on a promotion to an Arab Muslim colleague deserves to take his discrimination claims to court, the 3rd U.S. Circuit Court of Appeals determined Friday.
The officer in Massey v. Borough of Bergenfield, et al. vied for a promotion to chief of police with his counterpart in August 2019, following an interview process that came down to the two candidates. The plaintiff had eight more years of experience at the department and, as “officer in charge” at the time of the interviews, was “responsible for three-quarters to 90 percent of the department on a day-to-day basis.” His counterpart had received several promotions since joining in 2003, but also was the subject of several complaints and one suspension, according to court documents.
After he was not selected for the role, the plaintiff filed a lawsuit against the borough and five members of the hiring committee under the New Jersey Law Against Discrimination and the Civil Rights Act of 1866, alleging racial and religious discrimination.
Finding the plaintiff had not met the requirements of the New Jersey law’s “background circumstances rule” — a rule that requires a nonminority plaintiff to “show that he has been victimized by an unusual employer who discriminates against the majority” — a district court granted summary judgment for the defendants in the case.
Recent SCOTUS ruling takes center stage
On appeal, the 3rd U.S. Circuit Court of Appeals pointed to the U.S. Supreme Court’s 2025 decision in Ames v. Ohio Department of Youth Services — a development that occurred after the district court’s opinion. The high court’s unanimous decision found that the 6th Circuit’s former “background circumstances” rule for proving discrimination cut against Title VII of the Civil Rights Act of 1964.
“Although the Supreme Court of New Jersey has not yet had occasion to address Ames, we predict that the court would rely on Ames to conclude that the State’s Background Circumstances Rule no longer has a permissible role to play in litigation under New Jersey’s Law Against Discrimination,” the 3rd Circuit said.
The plaintiff in the case had credible evidence to convince a jury of discrimination, the 3rd Circuit found. Among that evidence, one member of the panel said she preferred the winning candidate because “he’s a minority,” the borough administrator told the plaintiff the decision was “all about race,” and one panel member had previously told the plaintiff he did not “look like the people in the town,” according to the 3rd Circuit’s opinion.
“The Third Circuit’s decision confirms that anti-race discrimination statutes, including the New Jersey Law Against Discrimination, apply to everyone equally, regardless of race,” Dylan Hastings, an attorney for the plaintiff in the case, told HR Dive. “As can be gleaned from the decision, there is significant evidence that the promotional decision was indeed influenced by race, and we look forward to proving that at trial.”
Attorneys for the borough did not respond to a request for comment by press time.
Massey is one of the earliest applications of Ames v. Ohio Dept. of Youth Services, aligning with attorneys’ predictions that “reverse discrimination” will be an active area for litigation this year. While some said they expect much of the action to come from the U.S. Equal Employment Opportunity Commission, Massey may be an early indication of shifting ground beyond the agency.