In 2024’s Muldrow decision, the U.S. Supreme Court relaxed the legal standard for plaintiffs claiming discrimination under federal civil rights laws. In that case, the court said that an employee can claim discrimination when subjected to an adverse employment action, even if that action did not cause them material harm. Instead, the Supreme Court said that demonstrating some impact on a term or condition of employment is enough to state a bias claim.

In Walsh v. HNTB Corp., the First Circuit Court of Appeals dismissed a lawsuit filed by an employee who claimed that her placement by her employer on a performance improvement plan (PIP) served as an adverse employment action based on her age. The First Circuit concluded that the plaintiff did not demonstrate harm because the PIP did not affect her wages, employment status, or opportunities for advancement. Instead, the court characterized the PIP as a documented counseling that did not result in adverse consequences. The First Circuit also noted that the plaintiff was an at-will employee, meaning that the PIP did not alter any contractual terms of employment.

The plaintiff appealed this decision to the Supreme Court, arguing that the PIP was an adverse employment action because it subjected her to heightened supervision and a threat of discharge. By rejecting the request to reconsider this decision, the court allows federal appellate circuits to individually determine what constitutes an adverse employment action. Depending on where the employer and employee are located, different lower level employment actions may or may not be deemed to meet this legal threshold.