1st Circuit Says Discrimination Claim Can’t Be Based on a PIP

Why It Matters

The ruling narrows the scope of "some harm" claims, giving employers clearer protection when using standard PIPs, while still warning that punitive PIPs may trigger liability. It sets a precedent for courts in the First Circuit and influences broader employment‑law strategy.

Key Takeaways

• 1st Circuit rules standard PIP isn’t an adverse employment action
• PIP must alter terms or duties to be adverse action
• Constructive discharge needs intolerable conditions, not mere complaints
• Employers can use PIPs for improvement without heightened liability
• Risk rises if PIP imposes punitive job changes

Pulse Analysis

The Supreme Court’s 2024 Muldrow decision lowered the burden for discrimination plaintiffs, allowing them to prove "some harm" rather than a material disadvantage. Courts across the country have since grappled with what constitutes an adverse employment action, often treating minor disciplinary tools—such as written warnings or performance improvement plans—as sufficient to meet the new threshold. This shift prompted a wave of litigation, forcing employers to reassess the legal risks attached to routine performance‑management practices.

In a landmark First Circuit opinion, the court drew a clear line between PIPs that merely communicate performance expectations and those that fundamentally alter an employee’s job. The court noted that Walsh’s PIP did not change her title, compensation, or duties, nor did it restrict future advancement, and therefore did not qualify as an adverse action. Moreover, the court reaffirmed the high bar for constructive discharge, emphasizing that ordinary workplace friction—even when accompanied by harsh comments—does not meet the "intolerable" standard. This fact‑intensive analysis provides a template for how other jurisdictions may evaluate similar cases.

For HR leaders and legal counsel, the decision underscores the importance of precise documentation and careful design of corrective actions. Employers should ensure PIPs are framed as developmental tools without embedding punitive provisions that could be construed as changing employment terms. When a PIP does involve role changes, salary adjustments, or loss of advancement opportunities, consulting an employment attorney before implementation is prudent. By aligning performance‑management policies with this nuanced legal landscape, companies can mitigate litigation risk while still addressing performance gaps effectively.