In order to state a claim of employment discrimination under federal civil rights laws, employees must demonstrate that they have been subjected to an adverse action. In most cases, the employee has been fired, demoted, or has suffered some other tangible harm that qualifies as an adverse action. What happens, however, when the only adverse action claimed is a negative evaluation or other measure that falls short of tangible harm? According to a new decision from the Fifth Circuit Court of Appeals, issuance of a performance improvement plan (PIP) is not enough to meet the adverse action requirement.

In Welsh v. Fort Bend Independent School, a teacher sued the school, alleging national origin, sex, and age discrimination. As evidence of adverse actions, she noted that she had been placed on a PIP and cited other alleged negative comments and slights from her principal. The Fifth Circuit affirmed dismissal of the discrimination claims on summary judgment, finding no evidence of an adverse action. The plaintiff claimed that the issuance of the PIP could have had negative effects on her long term career prospects. However, the court found no changes in the terms and conditions of employment resulting from the PIP. The other complaints were categorized as annoyances that did not meet the adverse action requirement.     

The plaintiff also claimed retaliation, and the court analyzed this allegation using a different, looser standard. Employees can demonstrate retaliation without showing an adverse action if the alleged steps by the employer would deter a reasonable person from pursuing a legal claim. In this case, the alleged retaliation and the original complaint were almost two years apart, meaning that there was no causal connection between the two.

In most situations, employers can counsel employees or issue warnings that by themselves will not be sufficient to trigger liability for employment discrimination.