The Third Circuit May Have Just Eased the Way for Reverse-Discrimination Claims in New Jersey

The Third Circuit has formally aligned itself with the U.S. Supreme Court’s recent decision making it easier for majority-group employees (i.e., men, heterosexuals, Caucasians, etc.) to pursue so-called “reverse discrimination” claims. In a decision authored by newly appointed Judge Emil Bove, the court held that plaintiffs who are members of majority groups are not required to establish “background circumstances” demonstrating their employer was inclined to discriminate against majority groups.

Applying the Supreme Court’s reasoning in Ames, the court concluded that the language of the New Jersey Law Against Discrimination (NJLAD), like its federal counterpart, protects “any” individual from discrimination. The Third Circuit reasoned that employees who are not in the “minority” to satisfy a higher evidentiary standard would be inconsistent with that statutory language and with principles underlying federal anti-discrimination law. Because the NJLAD framework has historically tracked federal Title VII jurisprudence, the court treated Ames as controlling guidance when evaluating the state-law claim.

It remains to be seen whether New Jersey’s appellate courts will adopt the same approach, as they have not yet addressed the issue following Ames.

As we noted when the Supreme Court issued Ames decision last year, this development may lead  to an increase in reverse discrimination claims by majority-group employees. Employers should review their policies, employment practices, and litigation strategies to account for this potential shift in the way that majority-group claims under the NJLAD will be analyzed by the courts.