July 21, 2026 | Posted By: Hoyer Law Group, PLLC
If you have ever received a Performance Improvement Plan at work, you know it rarely feels like a neutral event. Most employees experience a PIP as a warning shot, a sign that management is building a paper trail toward termination. But does a PIP cross the legal threshold of an “adverse employment action” under federal anti-discrimination law? A recent federal appeals court decision offers some useful guidance, and the answer depends heavily on what the PIP actually does to your job. A Lakeland, FL employment lawyer can help employees evaluate whether a Performance Improvement Plan may be connected to discrimination, retaliation, or other unlawful workplace conduct.
What Is an “Adverse Employment Action” and Why Does It Matter?
To bring a successful claim for workplace discrimination or retaliation under federal law, an employee generally must show, among other things, that the employer took an “adverse employment action” against them because of a protected characteristic (such as age, race, gender, disability, or pregnancy) or in retaliation for protected activity such as reporting harassment or filing an EEOC complaint.
Termination, demotion, and refusal to hire are obvious examples. The harder question is where to draw the line on lesser workplace events: a bad performance review, exclusion from meetings, or a PIP.
In 2024, the U.S. Supreme Court answered part of that question in Muldrow v. City of St. Louis. The Court lowered the bar, holding that an adverse employment action is any event that leaves the employee “worse off” with respect to the terms and conditions of employment, even if the harm is not severe or significant. That ruling opened the door to claims that might previously have been dismissed as too minor to be actionable.
But the door is not wide open. A recent decision from the U.S. Court of Appeals for the First Circuit shows that some workplace actions still do not clear even the post-Muldrow threshold, and PIPs are a prime example.
The Walsh Case: A PIP That Did Not Rise to the Level of an Adverse Action
In Walsh v. HNTB Corporation, plaintiff Joann Walsh was in her 50s when her employer placed her and a slightly older colleague on Performance Improvement Plans. Ms. Walsh completed the PIP. About ten months later, she resigned and sued the company for age discrimination under the Age Discrimination in Employment Act (ADEA) and its Massachusetts counterpart.
The trial court dismissed her age discrimination claims on summary judgment, and the First Circuit agreed. The appeals court found that Ms. Walsh’s PIP was not an adverse employment action, even under the more permissive Muldrow standard.
Why? Because the PIP did not actually change any term or condition of her employment. It documented performance deficiencies, set out improvement goals, and reserved the company’s right to terminate. But it left her title, pay, job duties, and advancement path entirely intact. The court described the PIP as “nothing more than documented counseling.”
Not All PIPs Are Created Equal
The First Circuit was careful not to issue a blanket rule. The court declined to hold that PIPs are categorically adverse or categorically not adverse. Whether any given PIP qualifies as an adverse employment action is fact-specific, and the key question is whether it actually altered the terms or conditions of employment.
A PIP can cross into adverse territory when it assigns new or more burdensome job duties, strips the employee of existing responsibilities, changes the employee’s title or compensation, limits access to promotions or advancement opportunities, or creates a record likely to damage the employee’s career prospects in concrete ways.
Courts have found PIPs with those characteristics to be adverse employment actions, not because a PIP is inherently discriminatory, but because it materially changed what the job looked like and what opportunities remained available.
What This Means for Employees
If you have been placed on a PIP and believe it was motivated by your age, race, gender, disability, or another protected characteristic, the first step is to look carefully at what the PIP actually does. Ask yourself: Does it change my duties, my pay, or my access to advancement? Or does it primarily document performance concerns and set improvement benchmarks?
A PIP that functions as genuine counseling may not, by itself, support a discrimination claim. But if it targets you for harsher treatment than similarly situated colleagues, arrives suspiciously close in time to a complaint you made, or is used to funnel you toward a termination that was already decided, those facts can matter a great deal to the broader claim. And of course, if termination follows the PIP, the termination itself is clearly an adverse action.
The Walsh decision also does not affect your right to document what is happening. Keep records of communications, save copies of the PIP and any related performance reviews, and note whether colleagues in similar roles are being treated differently.
A Caution for Employers
For employers, the Walsh decision is something of a green light to use PIPs as they were intended: a structured, documented process for addressing legitimate performance concerns. A well-drafted PIP that identifies specific deficiencies, sets objective and measurable improvement goals, and imposes a defined review period is unlikely to be treated as an adverse employment action in the First Circuit.
That said, employers should keep a few cautions in mind. First, if a PIP imposes new burdens or strips away responsibilities, it moves into adverse action territory. That does not make it automatically discriminatory, but it does expose the employer to a discrimination or retaliation claim that would otherwise be unavailable.
Second, employees who receive a PIP often perceive it as the beginning of the end. That perception can prompt protected activity, such as an internal complaint, an EEOC charge, or a report to HR about a manager’s conduct. Employers must be careful to avoid taking any adverse action during or after the PIP period that could be characterized as retaliatory.
Third, consistency matters. If employees in one protected group are disproportionately receiving PIPs, or receiving PIPs with more onerous requirements than those given to other employees, that pattern can become evidence of discrimination even if no individual PIP crosses the adverse action threshold on its own.
The Bottom Line
Walsh confirms that a PIP, by itself, is rarely enough to support a discrimination or retaliation claim. What matters is whether the plan actually changes the terms or conditions of employment, and whether it is applied consistently across the workforce. Employees facing a PIP should look past the document itself to how it functions in practice, and employers should treat the PIP as the structured counseling tool it is meant to be, nothing more and nothing less.
If you are in need of assistance from an experienced employment lawyer, contact Hoyer Law Group, PLLC today.
This blog is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified attorney.