In the minefield of employment litigation, one mis-step can often result in even the most sophisticated client facing risk of liability for a number of employment law claims. However, as one recent Minnesota Supreme Court decision illustrates, a little caution can go a long way.
Imagine you have a white Human Resources (“HR”) professional who insists that a minority employee is persistently underperforming and should be placed on a performance improvement plan (“PIP”). You are hesitant to place the employee on a PIP because she has a “racially based history” with the organization and you want to avoid a discrimination lawsuit.
The HR professional is impervious, insisting that you are discriminating against non-minority employees by not placing the minority employee on a PIP. Eventually, it is the HR professional’s performance that is failing, and you terminate her.
Did you just hit into the legal equivalent of a double play: (1) retaliation against the white HR professional for “opposing” the discrimination and (2) reverse discrimination by refusing to place the minority employee on the PIP.
Apparently not. According to the Minnesota Supreme Court in Bahr v. Capella University, — N.W.2d —-, 2010 WL 3502788 (Minn. Sept. 9, 2010), you committed neither retaliation nor discrimination under the Minnesota Human Rights Act. The reason is because the minority employee did not experience an “adverse employment action,” an element necessary to the discrimination claim, which serves as a basis for the retaliation claim.
Courts define an adverse employment action as “a tangible change in duties or working conditions.” Negative performance evaluations, unfair reprimands, and written warnings, while putative disciplinary measures, without more, do not constitute adverse employment actions.
Like a negative performance review, the Minnesota Supreme Court observed that placing an employee on a PIP does not make a tangible change to the employee’s duties or working conditions. As a result, the minority employee’s discrimination claim would have failed (although it was not asserted in this case) and, as a result, the HR professional’s retaliation claim based on this supposed discrimination fails as well.
Bottom Line
The lesson of Bahr is not for employers to do nothing in the face of an underperforming employee. Rather, the employer should be confident that it can take steps to improve an underperforming employee’s performance, including negative performance reviews and PIPs, without risking exposure to a discrimination or retaliation lawsuit. This is true regardless of whether the underperforming employee is in any sort of protected classification.