US: First Circuit Clarifies “Some Harm” Standard for Adverse Employment Actions Under Title VII

In Joanne Walsh v. HNTB Corporation, the First Circuit Court of Appeals provided further guidance on what employer actions may satisfy the “some harm” standard under Title VII, as announced by the Supreme Court in Muldrow v. City of St. Louis.

In Muldrow, the Supreme Court held that, to establish a claim of employment discrimination under Title VII, an employee need only show that he or she suffered an adverse employment action that caused “some harm,” and does not need to demonstrate that the harm was “significant.” The less stringent “some harm” standard, however, created uncertainty regarding what changes to an employee’s terms or conditions of employment are sufficient — or insufficient — to constitute an adverse employment action.

In Walsh, the former employee asserted a claim for age discrimination against her employer. She argued that, under Muldrow, she suffered multiple adverse employment actions because she was placed on a Performance Improvement Plan (“PIP”) and was subsequently subjected to allegedly hostile comments and behavior by her supervisors after completing the PIP, ultimately resulting in her constructive discharge.

Applying Muldrow, the First Circuit disagreed that the employee had experienced an adverse employment action. First, the Court held that a PIP is not automatically an adverse employment action. Rather, the implementation of a PIP is a fact-specific inquiry dependent on the terms and context of the PIP. In this case, the employee’s PIP did not constitute an adverse employment action because it identified areas for improvement relating to unsatisfactory performance and did not “assign [her] new duties, alter her title or compensation, or limit her ability to seek other opportunities within the company.”

Second, the Court found that the alleged conduct of the employee’s supervisors — including one supervisor telling her to “shut up” and “stop asking” who had complained about her job performance, and another supervisor indicating that the company might replace her with “younger, cheaper people” — while “harsh,” did not create working conditions so intolerable that a reasonable person would have felt compelled to resign. The Court further held that, although the employee perceived certain supervisory behavior to be unfair, including micromanagement and raised voices, “employment discrimination laws do not shield an employee from the ‘usual ebb and flow of power relations’ that may occur following the assignment of a new supervisor.” Accordingly, the Court concluded that the employee resigned voluntarily and was not constructively discharged and therefore failed to establish an adverse employment action.

The First Circuit’s decision in Walsh aligns with recent First Circuit precedent. In both O’Horo v. Bos. Med. Ctr. Corp. and Rios v. Centerra Grp. LLC, the Court similarly held that, although a plaintiff is not required to demonstrate “significant” harm under Muldrow, the plaintiff must still present evidence of a negative change in the terms or conditions of employment.

Takeaways from Walsh and Muldrow

The practical effect of the “some harm” standard articulated in Muldrow is to broaden the range of routine disciplinary and operational actions that employees may assert constitute negative changes to the terms or conditions of employment. Given the lower threshold, such claims may be less likely to be dismissed at an early stage. Employers should consider the following:

Policies and Documentation. Employers should ensure that policies are clearly articulated, consistently applied, and that disciplinary actions are properly documented. Even if an employee satisfies the “some harm” standard, an employer may still defeat a discrimination claim by demonstrating a legitimate, non-discriminatory reason for the action and showing that no pretext for discrimination existed.

Risk Mitigation. Employers should proactively assess their risk mitigation strategies, including, where appropriate, employment practices liability insurance. The revised legal standard established in Muldrow, together with evolving EEOC enforcement priorities, may increase the likelihood of claims. Employers should therefore ensure they are prepared to defend against such claims.

By White and Williams, US, a Transatlantic Law International Affiliated Firm. 

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