The Employment Law Counselor

In Joanne Walsh v. HNTB Corporation, the First Circuit Court of Appeals provided further guidance concerning what actions by an employer may satisfy the “some harm” standard under Title VII, 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 only needs to show that he or she suffered an adverse employment action that caused “some harm,” and need not show that the harm was “significant.” The less stringent “some harm” standard, however, created significant uncertainty as to what changes to an employee’s terms or conditions of employment would be sufficient, or insufficient, to constitute an adverse employment action.

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

Applying Muldrow, the First Circuit disagreed with the former employee that she faced any adverse employment action. First, the Court held that a PIP is not automatically an adverse employment action; instead, it stated, the implementation of a PIP is a fact-specific inquiry that is dependent on the terms, and context, of the PIP. In this case, the former employee’s PIP did not constitute an adverse employment action as it only listed areas of improvement for her 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 behavior by the former employee’s supervisors, including a supervisor telling the former employee to “shut up” and “stop asking” who complained about her job performance, and another supervisor indicating to the former employee that the company may replace her with “younger, cheaper people,” while “harsh,” did not rise to working conditions so intolerable that the former employee was forced to resign. Further, the Court found that while the former employee perceived some of a supervisor’s behavior to be unfair, including micromanaging her and raising his voice at her, it held that “employment discrimination laws do not shield an employee from the ‘usual ebb and flow of power relations’ that may come after the assignment of a new supervisor.” As such, the court found that the former employee resigned and was not constructively terminated and, therefore, failed to establish any 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 First Circuit similarly held that while a plaintiff does not need to show he or she suffered “significant” harm per Muldrow, a plaintiff must still provide evidence to demonstrate that, at the minimum, he or she suffered a negative change in the terms or conditions of employment.

Takeaways from Walsh and Muldrow

The practical implication of Muldrow’s “some harm” standard is to broaden the types of routine actions taken by employers, both disciplinary and operational, that an employee may assert is a negative change in the terms or conditions of his or her employment. Given the lower threshold of the “some harm” standard, such claims will be even less likely to be resolved by motion. Employers should consider the following:

• Policies and Documentation. Employers should ensure their policies are clearly articulated, consistently applied, and that all disciplinary actions are properly documented. Even if an employee successfully satisfies the “some harm” standard, the employer can still defeat a discrimination claim by demonstrating the employer had a legitimate, non-discriminatory reason for the action, and that there was no pre-text for discrimination.
• Risk Mitigation. Employers should proactively assess their risk mitigation strategy, including but not limited to the inclusion of employment practices liability insurance. The change in legal standard announced in Muldrow, as well as the EEOC’s shift in enforcement priorities, has increased the risk of claims against employers. As a result, employers should ensure they are prepared to defend against such claims.

For more information, please contact R. Victoria Fuller, Partner, (fullerv@whiteandwilliams.com; 617.748.5223) or Christina Balli, Associate, (ballic@whiteandwilliams.com; 617.748.5216.)