Performance Improvement Plans (PIPs) are inherently discriminatory. When managers issue PIPs with assertions of poor performance not based on fact but more on subjective conclusions and then set unreasonably high goals unequal to other employees, the system is rigged for failure, abuse, and discrimination from the start. PIPs have been trumpeted around the employer sandbox for years to control employees and form a defense to future litigation.
PIPs do not improve employee performance, but only create employee dissatisfaction and fodder for articles like this one. We have written about how abusive PIPs are and what employees can do to beat them HERE and HERE. A formal PIP is typically initiated after initial conversations and informal feedback have failed to resolve issues with an employee’s performance.
The PIP process should involve clear documentation and collaboration with an HR leader to ensure fairness and transparency. As an employment attorney and litigator, I have access to legal databases containing nearly every decision from courts around the country. I went searching for case decisions to support the above conclusion that PIPs are inherently discriminatory.
While I found cases where the employees were unable to demonstrate discriminatory intent and lost, I was also able to easily locate cases of arbitrary PIPs designed to discriminate. The following cases are recent examples of employers using arbitrary and discriminatory PIPs against employees. I will let you judge for yourself why PIPs are inherently discriminatory.
Subjective assessments often drive the decision to place an employee on a formal PIP, rather than objective evidence. It is crucial to identify the root cause of an employee’s performance issues before implementing a formal PIP, as this helps ensure that any interventions are appropriate and effective.
Introduction to Performance Improvement
Performance improvement is at the heart of any thriving organization. When employees are allowed to develop their skills and address performance deficiencies, the entire workplace benefits from increased productivity and job satisfaction. One of the most widely used tools for supporting struggling employees is the performance improvement plan (PIP).
A performance improvement plan is a formal document that clearly outlines specific areas where improvement is needed, sets clear and measurable goals, and establishes a timeline for achieving those goals. By implementing a performance improvement plan [PIP], organizations can provide a structured path for employees to meet expectations and overcome challenges. When designed thoughtfully, often using the SMART framework to ensure goals are Specific, Measurable, Achievable, Relevant, and Time-bound, such a plan can help employees focus on improvement and reach their full potential.
Ultimately, effective improvement plans not only address performance deficiencies but also foster a culture of accountability and continuous improvement, benefiting both employees and the organization as a whole.
From Good to Poor Performance and the Overt Racial PIP Example
Audrey Phillips, a Black woman, was hired by United Airlines as an information technology project manager in September 2017, reporting to her boss, Jeffrey Skains. In mid-2018, Skains gave Phillips a performance evaluation, stating that she was doing a great job managing the project team and her IT counterparts. At the end of 2018, Skains gave Phillips another review and rated her as partially meets expectations.
Skains then placed Phillips on a PIP. Clear expectations regarding the employee’s skills and job responsibilities must be established and communicated during this process, so employees understand what is required to meet expectations and to ensure fairness. By mid-2019, Skains terminated Phillips for not meeting her goals. I will state that this is the most common set of facts we see in our client cases in this office.
The employee starts out performing well, receives an excellent review, then a mysterious change occurs, resulting in the PIP being issued, followed by a termination for cause. Phillips survived summary judgment (Order) based on the following pertinent facts. Skains failed to hold two other Asian employees to the same standards of performance, even though those two employees had performance issues that negatively impacted Phillips’ performance, but they were not placed on a PIP.
Finally, while on the PIP, a PIP mentor (and I assume a manager) advised Phillips on how to be less ‘Black’ and to avoid culturally offending Skains. I checked the court docket, and the case appears headed to trial, as settlement discussions failed last fall. I will caution that this case is unusual as direct statements of bias exist in relatively very few cases, the majority are proven by asserting circumstantial evidence.
The Retaliatory Performance Improvement Plan Example
The next example is also a common case we see in our offices. June Preston was hired as an Executive Sales Representative at Eli Lilly and Company in April 2017. Throughout 2018, Preston and others made repeated complaints to [Christy Hoffman, District Manager] about the demeaning conduct of male Lilly employees, but their concerns went unaddressed.
Preston felt bullied and condescended to by male employees, but eventually stopped complaining to Hoffman because she felt, based on her prior complaints, that Hoffman would be unresponsive. Preston believed that Hoffman favored male employees. On December 7, 2018, Preston received a negative review from Hoffman and asked her to identify if there was a problem with her performance. Hoffman assured her there was not.
About a month later, Preston was denied a position for which she expressed interest. In February 2019, Hoffman complained to Preston that she was trying to throw her [Hoffman] under the bus because Hoffman managed a boys’ club. Hoffman expressed that Preston had a negative attitude and was insufficiently supportive of other team members during an award ceremony.
Just over a week later, Preston learned from an Employee Relations representative that Hoffman had complained to Employee Relations about Preston’s insufficient support for other team members. In reality, we see this a lot; the supervisor complains to HR about the employee, to start an investigation and build a defense in case the employee sues the employer. Preston then filed an internal complaint with Human Resources that she was being retaliated for formally complaining about sex discrimination under Hoffman.
On April 9, 2019, Hoffman placed Preston on a PIP. A PIP should be designed to set clear performance goals and provide feedback to help the employee achieve PIP goals, rather than being used as a tool for retaliation. Preston alleges that the PIP was not based on an objective assessment of her performance; rather, it was in retaliation for Preston’s complaints about sex discrimination in Hoffman’s district.
The court denied the employer’s motion to dismiss based on Preston’s above allegations. It is unclear from the fact pattern if Preston was terminated after the PIP. Court’s routinely state that PIPS are not adverse employment actions, however, in this case, the Court ruled that the PIP could be an adverse employment action if it carr[ies] with [it] immediate, albeit non-economic, consequences that in and of themselves go so far as to materially alter the terms and conditions of employment. (Preston v. Eli Lilly & Co., 2021 WL 5412534, 10/5/21).
The Fictitious Performance Improvement Plan (PIP) Example
The third example involves Andrea Summers, an African American woman, who worked as a Nursing Assistant in the Neonatal Intensive Care Unit at the Children’s Hospital of Philadelphia for over twenty years until her termination on November 17, 2020. Summers alleged her termination was because of her race and in retaliation for reporting two of her white female supervisors to the employer’s compliance department for inappropriate conduct directed at her. Specifically, she accused one manager of communicating with her disrespectfully and falsely accusing Summers of delaying the delivery of a patient from one floor to another.
Summers also complained about another manager accusing Summers of taking an unauthorized work break. [Summers argues that a series of disciplinary consequences flowed from her decision to report her supervisors. [She] alleges that after she made these reports, [her supervisor] began to interact and condescendingly speak to Ms. Summers, unlike the way she interacted with White Nursing Assistants. [She] further states that [her supervisor] continued to mistreat [Summers] and issued her three unjustified Disciplinary Action Reports in October and November 2020 for infractions she did not commit.
Due to the second report, Ms. Summers was placed on a Performance Improvement Plan and was required to enter CHOP’s Employee Assistance Program, attend five sessions of company-sponsored therapy, and meet with her supervisor every other week. The purpose of a PIP should be to document progress and support improvements in the employee’s progress, rather than to create grounds for termination. Following the third disciplinary report, CHOP terminated Ms. Summers’ employment.
The Court denied the employer’s motion to dismiss based on the following (Order): The Plaintiff does allege some facts which must be taken as true that, when viewed in the light most favorable to the Plaintiff, plausibly establish entitlement to relief. For example, Ms. Summers pleads that her supervisor spoke and interacted with her in a condescending way that was different from how she interacted with Plaintiff’s white peers. In addition, Ms. Summers alleges that she was reported for violating a variety of Defendant’s policies when she did not in fact commit any of the infractions.
As a result of these false discipline reports, she was suspended from work for over a week, placed on a performance improvement plan (PIP), and compelled to attend additional counseling sessions and meetings, and ultimately, terminated. We often see examples of false accusations in our client cases, such as the one Ms. Summers experienced, where she committed acts she never committed. I included this case for exactly this reason.
In this case, the employer just made up the fictitious accusation in the belief that Summers would never challenge them, or they were just arrogantly biased towards her. Employees faced with this nonsense must file a written rebuttal to set the record straight. While it will not change the employer’s decision to issue the PIP or terminate, it will help later in the severance negotiation process and ultimately the litigation of the case.
If you would like more information about dealing with a Performance Improvement Plan you received, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.
The Role of HR in Performance Improvement
The HR team is central to the performance improvement process, acting as both facilitator and advocate for fair and effective employee development. HR professionals are responsible for collaborating with managers and employees to identify areas where improvement is needed, ensuring that Performance Improvement Plans are tailored to the individual’s job requirements and aligned with company policies.
A key part of HR’s role is to help set clear and measurable goals within the PIP, provide ongoing coaching, and offer resources such as additional training to address skill gaps. By supporting employees throughout the process, HR can help ensure that the performance improvement plan is not just a formality but a genuine opportunity for growth. This includes monitoring progress, providing feedback, and making necessary adjustments to the plan as needed.
When HR is actively involved, the performance improvement process becomes a collaborative effort focused on helping employees succeed and meet job expectations.
The Importance of Documenting Progress
Thorough documentation is a cornerstone of any effective performance improvement process. Keeping detailed records of employee performance, including both achievements and ongoing challenges, allows managers and HR to track progress over time and identify areas that may require additional support. Regular check-ins and progress updates are essential for maintaining open communication and ensuring that employees remain on track to meet their improvement goals.
By documenting progress, organizations can make informed decisions about next steps, whether that means providing further resources, adjusting the improvement plan, or recognizing genuine improvement. Detailed records also serve as a valuable reference for future performance reviews and can help protect both the employee and the organization by providing a clear account of the steps taken to support improvement. Ultimately, documenting progress demonstrates a commitment to employee development and helps ensure that the performance improvement process is fair, transparent, and effective.
Common Mistakes to Avoid in Performance Improvement
While Performance Improvement Plans can be powerful tools for supporting employees, there are several common pitfalls that organizations should avoid. One frequent mistake is setting vague or unrealistic goals that make it difficult for employees to understand what is expected or to achieve success. Without clear and measurable goals, employees may feel unsupported and uncertain about how to improve.
Another misstep is failing to provide adequate support, such as ongoing coaching, constructive feedback, or access to additional training. A PIP should never be used solely as a disciplinary tool; its primary purpose is to support employees in overcoming performance deficiencies and reaching their potential. Managers and HR must also avoid making assumptions about an employee’s abilities or performance. Instead, they should focus on providing specific, actionable feedback and ensuring that employees have the resources they need to succeed.
By steering clear of these common mistakes, organizations can create Performance Improvement Plans that truly help employees grow and thrive.
Conclusion on PIPs for an Employee’s Performance
In summary, Performance Improvement Plans can be a valuable resource for helping employees reach their full potential and fostering a culture of accountability and continuous improvement. By understanding the importance of performance improvement, the critical role of HR, and the necessity of documenting progress, organizations can develop effective PIPs that drive positive outcomes. Avoiding common mistakes, such as unclear goals or lack of support, and focusing on clear and measurable goals, ongoing coaching, and regular feedback, enables managers and HR to help employees overcome performance deficiencies and achieve their objectives.
A structured approach to performance improvement not only enhances employee performance and job satisfaction but also helps identify and address underlying issues, such as communication skills or training needs. By prioritizing performance improvement and documenting progress, organizations can create a supportive work environment where employees feel empowered to grow, meet job expectations, and contribute to overall business success.
Need more information about dealing with a Performance Improvement Plan you received? Contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.
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