Court ruling raises the bar on diversity-based promotion decisions

What made the case remarkable was not the dispute itself, but the evidence behind it. The council members were reportedly inattentive during Massey’s interview. One arrived approximately 30 minutes late. Another told Massey, months before the vote, that he did not look like the people in town. A council member testified that Rabboh’s minority status was part of why he preferred him for the role. Another agreed it was important to have a minority department head. The Borough Administrator, after the decision was made, told Massey the council had wronged him and that the promotion came down to race. The defendants themselves conceded in court filings that race and religion had been considered in making the call. 

The court found that kind of evidence more than sufficient to send the case to trial. But the bigger legal story was what the court did with New Jersey’s Background Circumstances Rule, a judicial doctrine that had been the bane of majority-group discrimination plaintiffs since 1990. Under that rule, a white or otherwise majority-group employee claiming discrimination was required to clear a much higher bar at the outset of a case – effectively proving not just that they were treated unfairly, but that their employer was the kind of unusual organization that makes a habit of discriminating against majority groups. 

That rule is now on borrowed time in New Jersey. The Third Circuit predicted that New Jersey’s highest court would scrap it entirely, following the U.S. Supreme Court’s unanimous 2025 decision in Ames v. Ohio Department of Youth Services, which struck down the federal version of the same rule. The Supreme Court in Ames was unambiguous: federal anti-discrimination law does not require majority-group plaintiffs to jump through extra hoops. The Third Circuit found that New Jersey’s own anti-discrimination law – which uses identical language – leaves no room for a different result. 

For HR professionals, the implications are immediate and practical. The ruling makes clear that invoking diversity as a reason for a promotion decision is not, on its own, enough to justify passing over another qualified candidate. The court was explicit on this point. General statements about wanting a diverse leadership team, or celebrating the appointment of a first-in-history hire, may not shield employers from liability if those statements are tied to a specific employment decision. 

The case also illustrates how quickly comments made in meetings and depositions can become damaging evidence. Statements made by council members and the Borough Administrator about race and minority status were central to the court’s finding that a jury should decide what actually drove the promotion. HR professionals who counsel managers and executives on how to document and communicate employment decisions would do well to study this case closely.