The Third Circuit just predicted that New Jersey’s “reverse discrimination” rule is incompatible with the NJLAD. Federal courts in New Jersey are no longer applying it.
TL;DR: The Third Circuit predicted that the New Jersey Supreme Court would abolish the “Background Circumstances Rule,” the heightened burden imposed on majority-group plaintiffs in NJLAD discrimination cases, following the U.S. Supreme Court’s unanimous rejection of the rule in Ames v. Ohio Department of Youth Services. That prediction is binding on federal district courts in New Jersey. The Third Circuit then found that a white police officer had enough evidence of race and religious discrimination to go to trial after the borough passed him over for Police Chief.
Playing on Phones While the More-Qualified Candidate Interviewed
The plaintiff had been with the department since 1995, rising to Deputy Chief and Officer in Charge. He applied for Police Chief.
During his interview, several council members were on their phones and one arrived 30 minutes late. Afterward, the Borough Administrator told him he “crushed it” and it was “a slam dunk.” The Mayor thought the plaintiff’s resume was “overwhelmingly better” and that the competing candidate was “definitely under-qualified.” A council member who voted against the plaintiff said he was “sure” the plaintiff was “more qualified” and called the decision “wrong.”
The Council promoted the other candidate anyway. At the swearing-in, a council member announced that the borough had just appointed “the first Muslim Police Chief, only the second in the State of New Jersey.”
In litigation, the defendants conceded they had “considered [the promoted candidate’s] race and religion” in making their decision. A council member testified it was “important to have a minority department head.” Another said part of his reason for supporting the promoted candidate was that “he’s a minority.” The Borough Administrator told the plaintiff the decision was “all about race.”
The Background Circumstances Rule Is Dead in Federal Court
Under New Jersey law since 1990, majority-group plaintiffs bringing NJLAD discrimination claims faced a heightened burden: they had to show they were victimized by an “unusual employer who discriminates against the majority.” The district court applied that rule and dismissed the plaintiff’s NJLAD claim.
The Third Circuit reversed. After the U.S. Supreme Court unanimously struck down the federal version of this rule in Ames v. Ohio Department of Youth Services, the Third Circuit predicted the New Jersey Supreme Court would follow. The NJLAD and Title VII use identical text. Both protect “any” person from discrimination. A rule that imposes extra burdens on majority-group plaintiffs is incompatible with that language. A concurring opinion went further, concluding the rule likely violates the Equal Protection Clause outright.
With the Background Circumstances Rule gone, the plaintiff’s evidence was more than enough to send his NJLAD and Section 1983 claims to trial.
What NJ Employers Need to Do Right Now
The Background Circumstances Rule has shielded some employment decisions for 35 years. In federal court, that shield is gone. State court is a different story for now, but the writing is on the wall.
Lock down your promotion documentation. The defendants’ concession that they “considered [the promoted candidate’s] race and religion” helped get this case to a jury by itself. Document legitimate, specific, non-demographic reasons for every contested employment decision before it is made, not after.
Advise managers on what diversity remarks cost in litigation. Celebrating a first-ever minority hire at a public ceremony is deposition fodder. Comments about the value of minority leadership can be framed as “code words” for discriminatory intent. Brief decision-makers accordingly.
Treat majority-group discrimination complaints with the same rigor as any other. In federal court, a white employee alleging NJLAD race discrimination now faces no heightened threshold. Investigate and document these complaints with the same rigor applied to any other claim, regardless of which court they land in.
The New Jersey Supreme Court has not yet ruled, so the Background Circumstances Rule technically survives in state court. But federal district courts in New Jersey are bound by this decision, and the state court window is closing. Start adjusting your processes now.