Counsel and correct, don’t punish: PIPs after Walsh v. HNTB

Employers regularly use performance improvement plans (PIPs) as tools for addressing employee performance deficiencies. But in the wake of the U.S. Supreme Court’s 2024 decision in Muldrow v. City of St. Louis—which lowered the threshold for what constitutes an “adverse employment action” in discrimination cases—many employers have wondered whether placing an employee on a PIP could, alone, trigger liability. A new decision from the U.S. 1st Circuit Court of Appeals provides welcome guidance on that question and is likely to influence other appeals courts as they grapple with similar questions.

Muldrow Standard

In Muldrow, the Supreme Court held that employees alleging discrimination need only show “some harm”—not “significant” harm—to establish an adverse employment action. This lowered bar has led employees’ attorneys to argue that lesser disciplinary measures, including PIPs, can support discrimination claims even when those measures don’t affect an employee’s pay, title, or core job duties.

PIP at issue

Joanne Walsh worked as an IT employee for HNTB Corporation for more than 25 years. In 2019, the company placed her on a three-month PIP based on concerns about her performance and workplace interactions. Among other things, the PIP noted that she was perceived as “contentious,” “unwilling to look for solutions,” and an “impediment to the success/performance of the office.” The PIP provided a list of necessary improvements that correlated to the identified deficiencies. At the time, she was 55 years old