In its 2024 Muldrow v. St. Louis decision, the U.S. Supreme Court lowered the harm threshold for employees who bring claims under federal civil rights laws. Instead of having to demonstrate material or significant injury, the plaintiff only needs to plead some harm with respect to an identifiable term, condition, or privilege of employment. Last week, the First Circuit Court of Appeals held that even under this relaxed standard, merely placing an employee on a performance improvement plan (PIP) is insufficient to demonstrate an adverse employment action.

In Walsh v. HNTB Corp., the plaintiff alleged that a PIP issued to her along with accompanying negative comments regarding her job performance amounted to an adverse employment action adequate to support her age discrimination claim. The First Circuit disagreed, noting that the PIP did not change the terms and conditions of her employment by changing her duties, job title, compensation, or ability to pursue other opportunities within the organization. Objectively, a reasonable person in the plaintiff’s place would not be compelled to resign solely because their job performance was subjected to direct criticism.

This decision reins in some of the more expansive readings of the Muldrow decision. Even under the lowered standard, not every unpleasant occurrence in the workplace is sufficient to constitute an adverse employment action. The court may have been influenced by the fact that PIPs are a standard human resources management tool for addressing and hopefully correcting employee performance issues. If the mere act of placing an employee on a PIP is sufficient to trigger a discrimination claim, employers would face difficult decisions when attempting to provide a course correction to an underperforming worker.

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