The Supreme Court lowered the bar. Employers should take notice.

Last year, in Muldrow v. City of St. Louis, SCOTUS rewrote what counts as an "adverse employment action" under Title VII. The old rule required something "materially" adverse—real harm. That's gone. Now, if an employee is left even a little worse off in the terms or conditions of employment, that's enough.

That's a big deal. It opens the door to challenges over everyday workplace decisions that courts used to dismiss as trivial.

But here's the nuance: the bar is lower—not nonexistent.

Enter Walsh v. HNTB Corp.

Walsh, a long-time IT employee, was placed on a performance improvement plan. She completed it. No demotion. No pay cut. She later resigned and claimed age discrimination, arguing that the PIP itself was an adverse action.

Under pre-Muldrow law, that claim was dead on arrival. Post-Muldrow? It at least gets a serious look.

The First Circuit acknowledged the new standard: any change that leaves an employee worse off in their job conditions can qualify. And importantly, it made clear that some PIPs will meet that test.

But Walsh still lost. Her PIP didn't actually change anything that mattered. No new duties. No reduced opportunities. No impact on pay, title, or advancement. The court called it what it was—"documented counseling."

That's the lesson. A PIP is no longer automatically safe. But it's not automatically actionable either. It depends on what it does.

A PIP can now be an adverse action if it:

📝 Adds worse or more burdensome responsibilities
📝 Limits promotion or transfer opportunities
📝 Impacts compensation or advancement
📝 Meaningfully alters how the job is performed

Walsh's PIP did none of these. So, the employer won.

But don't get too comfortable. Here's what employers should be doing right now:

First, draft PIPs like they'll be Exhibit A. Because they will be. Tie them to objective performance issues and avoid vague, subjective critiques.

Second, be careful about layering on consequences. The more a PIP changes how someone works—or what opportunities they have—the more it starts to look like an adverse action.

Third, stay consistent. Disparate treatment claims just got easier to plead and harder to dismiss early.

Fourth, train your managers. "It's just a PIP" is no longer a safe assumption.

Muldrow didn't take the bar away. But it dropped it. And Walsh shows how low employers now have to go to get under it.