Takeaway: In placing an employee on a performance improvement plan (PIP), an employer should take care that its terms clearly state that its intended purpose is remedial, not punitive. Any negative effects on the employee’s conditions of employment, including changed duties, altered compensation, or limitations on seeking advancement opportunities, may make it more likely that the PIP could be determined an adverse action under a recent Supreme Court case.
Placing an employee on a performance improvement plan (PIP) did not violate the Age Discrimination in Employment Act (ADEA), the 1st U.S. Circuit Court of Appeals decided, because doing so did not affect her employment conditions.
The plaintiff worked for more than 25 years as an information technology support representative for an architectural design firm, supporting her employer’s IT systems in multiple offices. She received a mediocre performance review from a new supervisor in 2018. The supervisor said that, although the employee “met expectations,” she lacked initiative and had not improved upon any of the “necessary [company] characteristics” identified in the prior year’s review. He warned her that she was at risk of not meeting expectations and might be placed on a PIP.
The 53-year-old employee was placed on a three-month PIP in August 2019 at the same time as a slightly older colleague, who held the same IT support position. The two PIPs were nearly identical. The plaintiff’s PIP provided a list of necessary...
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