A performance improvement plan — also referred to as a “PIP” — is a human resources tool commonly used by employers. As illustrated by the recent decision in Walsh v. HNTB Corporation, 169 F.4th 330 (1st Cir. 2026), not all PIPs are created equal in evaluating when they may serve as a basis for an employment discrimination claim.
The U.S. Supreme Court’s landmark opinion in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), provides necessary background for discussing the significance of the Walsh decision.
Muldrow concerned a discrimination case brought under Title VII of the Civil Rights Act of 1964. That statute prohibits discrimination based on sex and other protected categories with respect to terms and conditions of employment. To establish a prima facie case of discrimination, a plaintiff must initially demonstrate that they are in a protected class and that they suffered an “adverse employment action,” among other elements.
Leading up to Muldrow, there was a split among the federal circuit courts concerning the definition of adverse employment action. The fundamental disagreement was whether the adverse action had to be material or significant to satisfy that element of the prima facie case.
In support of a discrimination claim, the plaintiff in Muldrow alleged that a job transfer was an adverse employment action. The lower court dismissed the claim on the basis that the plaintiff failed to prove that the job transfer at...
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