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Performance Counseling and Mediation Session Not Considered Adverse Employment Actions Under Title VII

    Client Alerts
  • 07/12/2019

Employees cannot sue under federal anti-discrimination laws for every perceived slight or workplace occurrence. In order to be actionable, the alleged employer conduct must rise to the level of an “adverse employment action.” This standard means something that results in tangible disadvantage to the employee, such as termination, pay cut, promotion denial, etc. Last month, the Seventh Circuit Court of Appeals confirmed that routine employee performance management steps do not rise to the level of an adverse employment action.

In Fields v. The Board of Education of the City of Chicago, a new principal began criticizing the plaintiff’s work and lesson plans, and offered assistance with correcting these issues. The plaintiff filed suit against the school district, claiming race and age discrimination. After missing several mandatory meetings, she received a series of performance improvement plans. The school then held an unsuccessful mediation session with her and the teachers’ union. The plaintiff retired before facing any disciplinary measures relating to her performance. She then filed additional discrimination and retaliation claims, alleging constructive discharge.

The Seventh Circuit affirmed a grant of summary judgment for the employer, concluding that the employee never suffered any adverse employment action. Negative performance reviews and performance improvement plans are not adverse actions. They only notify the employee that such consequences are possible. The plaintiff was not constructively discharged because she was never told that discharge was imminent. Her negative reaction to the performance management steps was not a reasonable basis to quit.

This decision and similar ones from other federal courts give employers assurances that standard measures to review and advise employees will not in and of themselves create the basis for discrimination claims. Until the performance review leads to actual negative consequences for the employee, their legal threats based upon displeasure over receiving negative feedback do not hold much weight.