On March 6, 2026, the U.S. Court of Appeals for the Third Circuit issued an employment discrimination decision involving a Bergen County police department promotion. In Massey v. Borough of Bergenfield, the court ruled that the plaintiff presented enough evidence to take key claims to trial. The decision matters to employees because it reinforces a simple principle: anti-discrimination laws protect any person, and courts should not impose extra hurdles based on whether the worker is viewed as part of a “majority” group.
The Facts That Led to the Lawsuit
Christopher Massey is a White male who worked for decades in the Borough of Bergenfield Police Department and rose to Deputy Chief. In early 2019, the then-Chief, Cathy Madalone, was out for medical reasons, and Mr. Massey served as Officer in Charge. When Chief Madalone later announced her retirement, the Borough began the process of selecting a new Chief of Police.
The decision was made by a majority vote of the Bergenfield Borough Council, with the Mayor acting as a tie-breaker if needed. Mr. Massey and another candidate, Mustafa Rabboh, were told they would be interviewed for the Chief position. Mr. Rabboh, described in the record as an Arab or Palestinian man of Muslim faith, held the rank of Captain. The opinion notes allegations about Internal Affairs complaints and discipline involving Mr. Rabboh.
Mr. Massey alleged that, at a Police Committee meeting in June 2019, a Councilmember pressed him about candidates the Department was considering hiring and asked what they “looked like.” Mr. Massey testified that when he resisted, he was told he did not “look like the people in the town.”
In August 2019, the candidates were interviewed in a closed executive session. Mr. Massey testified that several Councilmembers were inattentive during his interview, including being on their phones, and that one arrived late. After the interviews, an informal vote favored Mr. Rabboh. Mr. Massey also testified that the Borough Administrator later told him the decision was “all about race” and that the Council had “screwed over” him by choosing Mr. Rabboh.
The Council then held a public meeting on August 20, 2019 to formalize the vote. The opinion recounts that remarks surrounding the swearing-in included repeated references to diversity and the community, including statements that Bergenfield had appointed its first female Chief in 2015 and was now appointing its first Muslim Chief (and only the second in New Jersey).
Mr. Massey filed suit asserting discrimination claims under the New Jersey Law Against Discrimination (NJLAD), along with federal constitutional and statutory theories, including a § 1983 Equal Protection claim and a § 1981 claim. The federal district court granted summary judgment to Bergenfield and individual defendants, and Mr. Massey appealed.
The Legal Issue the Court Focused on
A central issue on appeal was a heightened burden that some New Jersey courts historically applied in certain “reverse discrimination” cases. Under that approach, a plaintiff who was not in a historically marginalized group had to prove extra “background circumstances” suggesting the employer was an “unusual employer who discriminates against the majority.”
While this appeal was pending, the U.S. Supreme Court decided Ames v. Ohio Department of Youth Services and rejected a heightened burden of that kind under Title VII. The Third Circuit’s job in Massey was to predict how the New Jersey Supreme Court would treat New Jersey’s version of the rule under the NJLAD.
The Third Circuit’s Holding in Plain Terms
The Third Circuit held that the Background Circumstances Rule should no longer apply to NJLAD claims. The court reasoned that the NJLAD, like Title VII, protects “any” individual, which provides no textual basis for imposing a special requirement on certain plaintiffs. The court also emphasized that the rule has been criticized as vague and difficult to apply consistently. Based on that analysis, the Third Circuit predicted the New Jersey Supreme Court would follow Ames and abandon the heightened requirement for “reverse discrimination” claims.
After removing that extra hurdle, the Third Circuit reviewed the summary judgment record and concluded that genuine disputes of material fact existed on Mr. Massey’s NJLAD discrimination claim. The court pointed to evidence that could support a finding that race or religion played a role in the promotion decision, including testimony about what decision-makers said during the process and in its aftermath. The court stressed that at summary judgment, judges are not supposed to decide whose version is more believable when the record contains evidence that a jury could credit.
The Third Circuit also held that Mr. Massey’s § 1983 Equal Protection claim could proceed, rejecting the idea that an employment discrimination claim of this kind is categorically barred under § 1983 when it is framed as a constitutional Equal Protection violation.
At the same time, the Third Circuit affirmed dismissal of the § 1981 claim as pleaded, explaining that § 1983 is the vehicle for pursuing § 1981 rights in damages actions against state actors.
The bottom line is straightforward: the court sent the case back for further proceedings, including the potential for trial on the NJLAD and Equal Protection theories.
Why This Decision Matters to Employees in New Jersey
Promotion decisions are often defended with polished explanations: “better interview,” “better fit,” “leadership style,” “needs of the department.” Courts can and do accept legitimate explanations when the evidence supports them. Massey matters because it reinforces that when there is evidence suggesting a protected trait may have influenced the outcome, the case should not be dismissed early just because the employer offers an alternative narrative.
The decision also has broader significance for New Jersey discrimination claims. If New Jersey courts adopt the Third Circuit’s reasoning (as the Third Circuit predicts they will), employees should not face a higher threshold simply because their protected trait does not fit a historically typical discrimination narrative. The question should be the same for everyone: does the evidence support that a protected characteristic played a role in the employment decision.
What Counts as Evidence in a Promotion Discrimination Case
Many employees assume they need a “smoking gun” to move forward. In reality, discrimination cases often turn on practical, everyday proof. Evidence can include timing, inconsistent explanations, deviations from usual procedures, comparative qualifications, and statements tied to protected traits.
Examples that can matter include interview irregularities, shifting reasons for a selection, decision-makers referencing protected traits in connection with the decision, unusual departures from typical posting or scoring processes, or written communications that reveal what was discussed behind the scenes. Even when an employer insists the decision was neutral, patterns in how the process unfolded can help show whether the stated reason is truly credible.
What to Do if You Suspect Discrimination in a Promotion Decision
If a promotion process felt unfair and you suspect discrimination played a role, you can protect yourself without unnecessarily escalating things into a conflict.
- Document what happened and when it happened, including key comments, meeting details, and who was present
- Preserve materials connected to the decision, such as emails, texts, scheduling messages, and any written explanation you were given
- Write down your qualifications and work history while details are fresh, including awards, evaluations, leadership roles, and relevant training
- Consider getting legal advice early, especially before the situation evolves into discipline, retaliation, or pressure to resign
FAQs About Promotion Discrimination in New Jersey
Do you have to prove the employer admitted discrimination to have a case?
No. Direct admissions can help, but many cases are built on circumstantial evidence, such as inconsistent explanations, irregular procedures, and statements that suggest protected traits were considered.
Can you bring a discrimination claim if you were qualified but the employer says the other candidate was a better “fit”?
Yes. “Fit” can be a legitimate consideration, but it can also be a vague label that covers bias. The legal issue is whether the explanation is credible and supported by the record, or whether the facts suggest it was used to hide a discriminatory motive.
What if you are worried about retaliation for complaining internally?
Retaliation is unlawful in New Jersey. Still, the safest approach depends on the workplace and the facts. In many situations, it helps to get legal advice first so you can make decisions that protect your job, your documentation, and your options.
Speak With a Bergen County Employment Lawyer
If you believe you were denied a promotion, disciplined, or otherwise treated differently at work because of race, religion, or another protected trait, it can help to get clear advice about your options under New Jersey law. Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents employees in discrimination and retaliation matters throughout New Jersey. To speak with a Bergen County employment lawyer, call (201) 777-2250 or contact Rabner Baumgart Ben-Asher & Nirenberg, P.C. online to schedule a consultation.