1st Circuit says discrimination claim can’t be based on a PIP

It used to be pretty well settled in Massachusetts (and many other places) that an employee couldn’t win an employment discrimination case without proving their employer’s allegedly discriminatory actions caused them to suffer meaningful harm—i.e., that the “adverse employment action” their employer took against them was “material.” That changed back in 2024, when the U.S. Supreme Court ruled in Muldrow v. City of St. Louis that an employee who was claiming gender discrimination didn’t have to prove her employer’s allegedly discriminatory decision caused her a “significant disadvantage.” Instead, she only had to prove it caused her to experience “some harm.”

This dramatic shift in the employee’s burden of proof led to a string of opinions all over the country finding that relatively minor employment actions meet the “some harm” threshold, including written warnings and other performance management tools. In a recent decision, however, the U.S. 1st Circuit Court of Appeals (whose rulings apply to all employers in Massachusetts, Maine, New Hampshire, and Rhode Island) took a more measured approach, holding that—even under the new Muldrow standard—an employee didn’t suffer an adverse employment action when her employer put her on a performance improvement plan (PIP). This rare win for employers offers critical new guidance about what the “some harm” standard means in Massachusetts. It also reaffirms that an employee cannot prove they were forced to resign unless they can show their working conditions had become truly intolerable.

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