In order to constitute an actionable claim for employment discrimination under federal civil rights laws, the plaintiff must demonstrate that he or she was subjected to an adverse employment action. This means some change in the terms and conditions of employment that has an effect on pay, benefits or employment status.

Last month, the Third Circuit Court of Appeals joined several other federal circuits in concluding that placement of an employee under a Performance Improvement Plan (PIP) does not in and of itself constitute an adverse employment action. In Reynolds v. Dept. of Army (unpublished), the plaintiff was a civilian federal worker who claimed age discrimination after he was presented with a PIP requiring improved work performance under threat of subsequent disciplinary action, including possible termination.

The Third Circuit affirmed dismissal of the claim on summary judgment. The court noted that several other federal appellate courts (not including the Fourth Circuit, which includes North and South Carolina) concluded that a PIP alone is not an adverse employment action unless it is accompanied by a change in pay, benefits or status. PIPs only relate to existing job requirements. The threat of subsequent adverse actions posed by the PIP is not enough to support a discrimination claim.

The same reasoning may not apply to an employment retaliation claim. In Burlington Northern, the Supreme Court established a standard for actionable retaliation based on employer actions that would deter a reasonable employee from pursuing complaints against the employer. Lower courts have issued mixed decisions as to whether disciplinary action such as a PIP meets this test. Please see the following article for an example of this difference.

Absent a possible retaliation situation, routine employment evaluations and guidance will not form the basis for an actionable discrimination claim by employees upset by these actions.